Opinion

Janie Young v. Department of Homeland Security

2024 MSPB 18

Court: Merit Systems Protection Board
Filed: Dec 10, 2024
Status: Published
Cited by: 11 cases
Authority: More cited than 65.7%

explaining that relevant factors in determining a motive to retaliate include whether the official was the subject of the appellant’s whistleblowing activity and how soon after the appellant’s whistleblowing he made the report or initiated the investigation

How later courts described this case

explaining that relevant factors in determining a motive to retaliate include whether the official was the subject of the appellant’s whistleblowing activity and how soon after the appellant’s whistleblowing he made the report or initiated the investigation
reasoning that whether an agency official suffers negative consequences as a result of the appellant’s whistleblowing is relevant to the question of whether he had a motive to retaliate against the appellant
reaffirming that in an individual right of action appeal that the Board will consider the retaliatory motive of the individual who reported the employee’s misconduct that resulted in the challenged disciplinary action

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 18

Docket No. DE-1221-18-0335-W-2

Janie Young,

Appellant,

Department of Homeland Security,

Agency.

December 10, 2024

Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.

Joey Ann Lonjers , Esquire, Long Beach, California, for the agency.

Gregory J. Martin , Esquire, Tucson, Arizona, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate

in the adjudication of this appeal.

OPINION AND ORDER

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

denied corrective action in her individual right of action (IRA) appeal. For the

reasons set forth below, we GRANT the petition for review, REVERSE the initial

decision’s denial of corrective action as to the appellant’s 15-day suspension, and

ORDER corrective action in connection therewith. In so doing, we reaffirm and

apply the Board’s analysis in whistleblower appeals involving a claim that a

report of misconduct or an ensuing investigation was retaliatory, as set forth in

Russell v. Department of Justice, 76 M.S.P.R. 317 (1997).

BACKGROUND

¶2 During the time period relevant to this appeal, the appellant was employed

as a GS-15 Supervisory Field Operations Specialist with Customs and Border

Protection and served as Chief of Staff to the Commander of the Joint Task Force

West (JTFW) in Tucson, Arizona. Young v. Department of Homeland Security,

MSPB Docket No. DE-1221-18-0335-W-1, Initial Appeal File (IAF), Tab 16

at 39, 354; Young v. Department of Homeland Security, MSPB Docket No. DE-

1221-18-0335-W-2, Appeal File (W-2 AF), Tab 25 at 1. The JTFW Commander

was the appellant’s first-line supervisor. IAF, Tab 16 at 354; W-2 AF, Hearing

Transcript Day 1 (HT-1) at 82 (testimony of the appellant). The appellant was the

first-line supervisor for a special assistant and a mission support specialist. IAF,

Tab 16 at 354; HT-1 at 89 (testimony of the appellant).

¶3 According to the appellant, in April 2016, she was made aware that the

special assistant who reported to her had continuously failed to include her in

communications between the special assistant and senior agency leadership,

despite previous directives to include the appellant in all such communications.

HT-1 at 94-97 (testimony of the appellant). As a result, she instructed the special

assistant to draft a memorandum discussing how the communication issue could

be remedied. IAF, Tab 10 at 4, 15-17; HT-1 at 97 (testimony of the appellant).

The special assistant directly approached the Commander about the situation, who

removed the special assistant from the appellant’s supervision, admonished the

appellant, and ordered the appellant to identify the individual who had provided

the information to her concerning the special assistant’s communications. IAF,

Tab 10 at 4-5, 22, 37-38, Tab 16 at 351-52; W-2 AF, Tab 9 at 28-29; HT-1

at 97-102 (testimony of the appellant). The appellant refused to disclose from

whom she had learned about the special assistant’s communications, contending

that the individual who had disclosed the communications was a whistleblower.

W-2 AF, Tab 9 at 28-29; HT-1 at 98, 101-02 (testimony of the appellant).

¶4 On May 18, 2016, the appellant filed two complaints with the Office of

Special Counsel (OSC) concerning the Commander’s actions as set forth above.

IAF, Tab 10 at 19-35. These complaints concerned the Commander’s verbal

admonishment of the appellant for insubordination for failing to obey his order to

disclose the name of the employee who had informed the appellant of the

communication issues with the special assistant, and further alleged that the

Commander showed improper favoritism toward the special assistant by

reassigning her to another supervisor instead of having her comply with the

appellant’s instructions. Id. The appellant similarly reported the Commander’s

alleged wrongdoing to the agency’s Office of Inspector General (OIG) through

the Joint Intake Center (JIC). Id. at 40-43. On May 20, 2016, the appellant

provided the Commander with a memorandum apprising him that she felt that,

among other things, he had committed prohibited personnel practices by ordering

her to disclose the name of her subordinate employee who informed her of the

special assistant’s communications. Id. at 37-38.

¶5 Two months later, in July 2016, the mission support specialist over whom

the appellant was the first-line supervisor filed an equal employment opportunity

(EEO) complaint naming the Commander as the responsible management official.

IAF, Tab 16 at 85-106, 128; W-2 AF, Tab 18 at 69-70, Tab 25 at 1; HT-1 at 137,

141 (testimony of the mission support specialist). 1 The EEO complaint alleged

that the Commander had improperly temporarily reassigned the mission support

specialist to the agency’s Policy and Compliance Division and denied her training

in retaliation for her involvement in the matter set forth above. 2 IAF, Tab 16

Although the EEO complaint is not in the record, it is undisputed that the Commander

was named as the responsible management official.

The record suggests that the mission support specialist was the employee who

informed the appellant about the communications issues with the special assistant.

W-2 AF, Hearing Transcript Day 2 (HT-2) (testimony of the Commander).

at 85. On August 15, 2016, the appellant served as the management official in an

EEO mediation of the mission support specialist’s complaint. W-2 AF, Tab 25

at 1. Although the appellant and the mission support specialist arrived at a

proposed settlement, which included a noncompetitive promotion and training, the

proposed settlement required the approval of a higher-level official before it

could become effective. W-2 AF, Tab 18 at 13. After learning of the EEO

complaint and the appellant’s involvement as the agency official representing

management, the Commander informed the Diversity and Civil Rights Officer

(DCRO) that the Deputy Commissioner of the agency did not approve the

settlement agreement. IAF, Tab 16 at 142.

¶6 On August 29, 2016, the Commander contacted the OIG/JIC alleging that

the appellant had improperly served as the management official in the August 15,

2016 mediation because she did not inform him of the EEO complaint or discuss

with him whether to engage in mediation, as he had previously instructed. IAF,

Tab 16 at 128. He further alleged that the appellant’s participation in the

mediation constituted a conflict of interest because the appellant was a personal

friend of the mission support specialist and appeared to be using the EEO process

to obtain training and a promotion for the mission support specialist in

circumvention of agency rules.

¶7 In response to the Commander’s OIG/JIC complaint, the Office of

Professional Responsibility (OPR) conducted an investigation and issued an

administrative inquiry report. IAF, Tab 16 at 108-26. Thereafter, on August 30,

2017, a member of the discipline review board proposed the appellant’s removal

based on the charges of an appearance of a conflict of interest, failure to follow

supervisory instructions, and lack of candor. Id. at 75-78. After affording the

appellant an opportunity to respond orally and in writing, the deciding official

issued a decision sustaining the appearance of a conflict of interest and failure to

follow supervisory instructions charges, but not the lack of candor charge. Id.

at 41-45, 47-57. The sustained charges were based on the appellant’s actions in

serving as the management official in the mission support specialist’s EEO

mediation. Id. at 42, 75-76. The deciding official mitigated the proposed penalty

to a 15-day suspension. Id. at 43. During the pendency of these disciplinary

proceedings, the Commander was replaced, 3 and the new Commander issued the

appellant a memorandum on February 12, 2018, laterally reassigning her to the

position of Director of the Targeting Assessment Program for JTFW. Id. at 35.

¶8 On July 2, 2018, the appellant filed an IRA appeal with the Board alleging

that the agency’s decisions to suspend her for 15 days and reassign her constituted

reprisal for her protected disclosures and protected activity. IAF, Tab 1. She also

argued that the OPR investigation that led to these actions was initiated in reprisal

for her whistleblowing activity. After holding the appellant’s requested hearing,

the administrative judge issued an initial decision denying the appellant’s request

for corrective action. 4 W-2 AF, Tab 30, Initial Decision (ID). The administrative

judge found that the appellant met her burden of proving by preponderant

evidence that she made a protected disclosure and engaged in protected activity

that was a contributing factor in the agency’s decisions to suspend and reassign

her. ID at 8-12. He went on to find that the agency proved by clear and

convincing evidence that it would have suspended and reassigned her absent her

protected disclosure and protected activity. ID at 12-19. In making these

findings, the administrative judge did not address whether the investigation that

led to the appellant’s suspension and reassignment was retaliatory.

At or around the time the agency proposed the appellant’s removal, the Commander

was selected by the Secretary of the Department of Homeland Security to be the

Director of the JTFW in San Antonio, Texas, and he transferred out of the Tucson,

Arizona location. HT-2 at 162-63 (testimony of the Commander).

Prior to the issuance of the initial decision on the merits of the appellant’s

whistleblower reprisal claim, the administrative judge ruled that the appellant made the

requisite jurisdictional showing for the appeal to proceed to a hearing on the merits.

IAF, Tab 17 at 1. This conclusion necessarily included a finding that the appellant had

exhausted her administrative remedy with OSC. See IAF, Tab 10 at 87. Neither party

has challenged the existence of Board jurisdiction.

¶9 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 9. The agency has responded to the appellant’s petition for review, and

the appellant has filed a reply. PFR File, Tabs 13-14.

ANALYSIS

We agree with the administrative judge that the appellant established a prima

facie case of whistleblower reprisal regarding her protected activities.

¶10 At the merits stage of an IRA appeal, an appellant must prove by

preponderant evidence that she made a protected disclosure under

5 U.S.C. § 2302(b)(8) or engaged in an activity protected by 5 U.S.C.

§ 2303(b)(9)(A)(i), (B), (C), or (D), and that such a disclosure or activity was a

contributing factor in an agency’s personnel action. 5 U.S.C. § 1221(e)(1); Smith

v. Department of the Army, 2022 MSPB 4, ¶ 13. If the appellant meets that

burden, then the agency is given an opportunity to prove by clear and convincing

evidence that it would have taken the same personnel action absent the protected

disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13.

¶11 On petition for review in this appeal, neither party challenges the

administrative judge’s finding that the appellant proved by preponderant evidence

that she engaged in protected activity when she filed two complaints with OSC

and a third complaint with the OIG/JIC. 5 PFR File, Tabs 9, 13-14; ID at 8. We

The administrative judge acknowledged that the OSC and OIG/JIC complaints are

protected regardless of their content, but he nonetheless proceeded to analyze the

content of the complaints because he found that “the protected nature” of the complaints

is relevant to the agency’s burden to show that it would have taken the personnel

actions in the absence of the protected disclosures or activity. ID at 8-9. He concluded

that “a reasonable person in the appellant’s position could believe that [the Commander]

was violating the [whistleblower protection statutes] by requiring her to disclose” the

identity of the person who informed her of the special assistant’s failure to include the

appellant on written communications. ID at 9. However, he found that the portion of

the appellant’s disclosure relating to the alleged impropriety of the Commander

reassigning the special assistant was not protected because the appellant failed to show

that the Commander lacked the authority to reassign subordinates. ID at 10. On

review, the appellant challenges the latter finding. PFR File, Tab 1 at 15-17. We need

not address whether this portion of the appellant’s disclosure was protected under

section 2302(b)(8) because, as explained by the administrative judge, the activity of

agree with the administrative judge’s finding. 5 U.S.C. § 2302(b)(9)(C); Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶ 62. The parties also do

not challenge that the 15-day suspension and reassignment are personnel actions

covered under the whistleblower protection statutes, and we discern no error in

that regard. PFR File, Tabs 9, 13-14; ID at 11; see 5 U.S.C.§ 2302(a)(2)(A)(iii),

(iv); Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007). Finally,

there is no dispute on review that the appellant established by preponderant

evidence that her protected activity was a contributing factor in the personnel

actions discussed above because both the proposing and deciding officials

admitted that they were aware of the appellant’s protected activity and both

actions occurred within approximately 18 months of the protected activity. PFR

File, Tabs 9, 13-14; ID at 11-12; see Smith, 2022 MSPB 4, ¶ 19 (explaining that

an appellant can establish the contributing factor element through the

knowledge/timing test). In sum, we find that the appellant established her prima

facie case of whistleblower reprisal by preponderant evidence.

The appellant also established a prima facie case of whistleblower reprisal

regarding the OPR investigation.

¶12 Because the appellant met her burden of establishing a prima facie case of

whistleblower reprisal, the administrative judge considered whether the agency

proved by clear and convincing evidence that it would have suspended and

reassigned the appellant absent her protected activity. ID at 12-19; see

5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13. He focused his analysis

exclusively on the deciding official’s decision to suspend the appellant for

15 days and the new Commander’s decision to reassign her following the prior

Commander’s departure. ID at 12-19. Ultimately, he concluded that the agency

filing an OSC or OIG complaint is protected under section 2302(b)(9)(C) regardless of

the complaint’s content. See Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶ 62 (stating that disclosing information to an OIG or OSC is protected activity

under section 2302(b)(9)(C) irrespective of whether an individual had a reasonable

belief that she was disclosing wrongdoing and regardless of the complaint’s contents).

met its clear and convincing evidence burden. ID at 13, 19. Therefore, he denied

corrective action. ID at 19.

¶13 On review, the appellant argues that the administrative judge erred in his

analysis because he failed to consider any motive to retaliate on the part of the

prior Commander in reporting the appellant’s alleged misconduct for

investigation, which ultimately led to the personnel actions at issue. PFR File,

Tab 9 at 20-22, Tab 14 at 5-7. In response, the agency asserts that the appellant

waived any claim concerning the retaliatory nature of the investigation because,

during the prehearing conference, she confirmed that she was not asserting that

the investigation itself was a personnel action. PFR File, Tab 13 at 21-22. For

the reasons discussed below, we find the agency’s argument unavailing.

¶14 In Spivey v. Department of Justice, 2022 MSPB 24, ¶¶ 10-12, we reiterated

that an investigation generally is not a personnel action under 5 U.S.C.

§ 2302(a)(2)(A) unless it creates circumstances that rise to the level of a

significant change in duties, responsibilities, or working conditions under

5 U.S.C. § 2302(a)(2)(A)(xii). See Sistek v. Department of Veterans Affairs,

955 F.3d 948, 955 (Fed. Cir. 2020). However, in Russell v. Department of

Justice, 76 M.S.P.R. 317, 323-24 (1997), the Board’s seminal case on retaliatory

investigation claims, we found it appropriate to consider evidence regarding the

conduct of an agency investigation when the investigation was so closely related

to the personnel action that it could have been a pretext for gathering information

to retaliate against an employee for whistleblowing activity. See Johnson,

104 M.S.P.R. 624, ¶ 7; Geyer v. Department of Justice, 70 M.S.P.R. 682, 688

(1996), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Thus, although the

appellant indicated during the prehearing conference that she was not asserting

that the investigation was, itself, a separate personnel action, there is nothing in

the record suggesting that she waived the general claim that the Commander

initiated the investigation in reprisal for her protected activity. Accordingly, we

discuss that claim here.

¶15 In determining whether an investigation was so closely related to a

personnel action that it could have been a pretext for gathering evidence to

retaliate against an employee for whistleblowing activity, the Board will examine

the origins of the investigation. Mangano v. Department of Veterans Affairs ,

109 M.S.P.R. 658, ¶ 38 (2008); Russell, 76 M.S.P.R. at 323-24. Regarding the

15-day suspension, the two sustained charges—appearance of a conflict of

interest and failure to follow supervisory instructions—arose from the findings of

the OPR investigation, which undisputedly was initiated by the Commander’s

complaint to the OIG/JIC. IAF, Tab 16 at 41-42, 75-76, 108-26, 128. As

discussed previously, the Commander was the sole subject of the appellant’s OSC

and OIG/JIC complaints regarding his handling of the communications issue

involving the special assistant. IAF, Tab 10 at 19-35, 37-38, 40-43. Because the

suspension action was based on the findings of the OPR investigation, and

because the Commander initiated the OPR investigation and also was the subject

of the appellant’s protected activity, we find that the OPR investigation was so

closely related to the appellant’s suspension that it could have been a pretext for

gathering evidence to retaliate. 6 See Mangano, 109 M.S.P.R. 658, ¶ 44

(concluding that investigations were so closely related to the charged misconduct

supporting the appellant’s removal that the investigations could have been a

pretext for gathering evidence used to retaliate against the appellant for

Regarding the reassignment, however, the new Commander testified that he reassigned

the appellant to the Director of Targeting position because there was a need in the

region to refocus targeting efforts from marijuana interdiction to alien smuggling and

that the appellant’s prior experience in targeting would make her an asset in that role.

HT-1 at 226-29 (testimony of the new Commander). He further testified that he was

aware of the appellant’s suspension, but that it played no role in his decision to reassign

her, and that he regularly reassigned staff as necessary for mission purposes. HT-1

at 209, 235-36 (testimony of the new Commander). We also note that the new

Commander was not the subject of the appellant’s whistleblowing activity.

Accordingly, we find that the OPR investigation was not so closely related to the

decision to reassign the appellant that it could have been a pretext for gathering

evidence to retaliate against her. We therefore deny the appellant’s request for

corrective action on this claim.

whistleblowing when, among other reasons, one of the investigations was

convened by the agency official who was the subject of the appellant’s

whistleblowing); Russell, 76 M.S.P.R. at 324 (finding that an investigation was so

closely related to the personnel action that it could have been a pretext for

gathering evidence to retaliate when the charges forming the basis for the action

were the direct result of the investigation).

¶16 When, as here, an appellant has shown by preponderant evidence that an

investigation is so closely related to a personnel action that it could have been a

pretext for gathering evidence to retaliate, the Board will consider evidence

regarding the investigation—more specifically, it will analyze the factors set forth

in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999),

as they relate to any report of misconduct and any ensuing investigation that led

to a personnel action—in determining whether the agency has met its clear and

convincing evidence burden. 7 Russell, 76 M.S.P.R. at 323-24, 326-28; see

Marano v. Department of Justice, 2 F.3d 1137, 1142 (Fed. Cir. 1993)

(determining that, “[s]o long as a protected disclosure is a contributing factor to

the contested personnel action, and the agency cannot prove its affirmative

defense, no harm can come to the whistleblower”). That the investigation itself is

conducted in a fair and impartial manner, or that it uncovers actionable

misconduct, does not relieve an agency of its obligation to show by clear and

In Russell, 76 M.S.P.R. at 324, the Board also stated that, when an investigation is so

closely related to a personnel action that it could have been a pretext for gathering

evidence to retaliate, “and the agency does not show by clear and convincing evidence

that the evidence would have been gathered absent the protected disclosure,” then the

appellant will prevail on an affirmative defense of reprisal for whistleblowing. This

statement, which is not supported in the decision by any legal authority, is inconsistent

with the standard set forth at 5 U.S.C. § 1221(e)(2). It is also inconsistent with the rest

of the Russell decision, which does not address whether the agency showed by clear and

convincing evidence that the evidence would have been gathered absent the protected

disclosure or activity, but instead analyzes whether the agency showed by clear and

convincing evidence that it would have taken the same personnel action in the absence

of the protected disclosure. Russell, 76 M.S.P.R. at 326-28. The statement is,

therefore, dicta and will not be followed.

convincing evidence that it would have taken the same personnel action in the

absence of the protected disclosure or protected activity. See 5 U.S.C.

§ 1221(e)(2); Russell, 76 M.S.P.R. at 324.

¶17 This approach discourages the use of “selective investigations” as a

retaliatory tool and, as we previously explained in Russell, is supported by the

Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 111

(1978), and the Whistleblower Protection Act of 1989 (WPA), Pub. L.

No. 101-12, 103 Stat. 16 (1989). Russell, 76 M.S.P.R. at 325 (explaining that the

CSRA assures Federal employees that “they will not suffer if they help uncover

and correct administrative abuses,” and that one of the goals of the WPA was to

“encourage [G]overnment personnel to blow the whistle on wasteful, corrupt, or

illegal [G]overnment practices without fearing retaliatory action by their

supervisors or those harmed by the disclosures”) (internal citations omitted)).

Since we decided Russell in 1997, Congress passed the Whistleblower Protection

Enhancement Act (WPEA) in 2012. Pub. L. No. 112-199, 126 Stat 1465. The

Senate Report for the WPEA acknowledged the “harassing character” of

retaliatory investigations and that, in declining to add them to the list of

qualifying personnel actions out of fear of chilling routine investigations, it

“create[d] an additional avenue for financial relief once an employee is able to

prove a claim under the WPA, if the employee can further demonstrate that an

investigation was undertaken in retaliation” for a protected disclosure or

protected activity. S. Rep. No. 112-155, at 20-21 (2012); see Sistek, 955 F.3d

at 954. In doing so, the drafters of the WPEA specifically confirmed their intent

that the Board’s seminal decision in Russell would remain the “governing law”

following the enactment of the WPEA. S. Rep. No. 112-155, at 21; see Sistek,

955 F.3d at 955. Pursuant to the CSRA, WPA, and WPEA, we reaffirm our

approach to retaliatory investigations as set forth in Russell.

¶18 In considering evidence of a retaliatory investigation, we acknowledge the

well-established principle that the whistleblower protection statutes are not

intended to shield employees who engage in wrongful conduct merely because

they also have engaged in whistleblowing activity. See Marano, 2 F.3d

at 1142 n.5 (citing 135 Cong. Rec. 5033 (1989)); O’Donnell v. Department of

Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d per curiam, 561 F. App’x 926

(Fed. Cir. 2014); Russell, 76 M.S.P.R. at 325. That same principle must apply to

investigations; thus, to be clear, an employee’s protected disclosures or activities

do not preclude an agency investigation of the employee. 8

¶19 However, that a finding of reprisal results in an outcome in the appellant’s

favor despite proven misconduct is not an unfamiliar concept in the law. Our

approach to retaliatory investigation claims is similar to our approach in adverse

action appeals when an appellant proves discrimination or retaliation claims

pursuant to, among other provisions, Title VII of the Civil Rights Act of 1964. In

such cases, we reverse the adverse action even when the agency proves the

charged misconduct. See, e.g., Durden v. Department of Homeland Security,

108 M.S.P.R. 539, ¶¶ 8-9, 14 (2008) (finding that, despite the agency meeting its

burden of proof with respect to the charged misconduct, the appellant’s removal

action could not be sustained because she established an affirmative defense of

sex discrimination); Creer v. U.S. Postal Service, 62 M.S.P.R. 656, 658-64 (1994)

(finding that the appellant’s removal could not be sustained despite the agency

proving its charge of insubordination/failure to follow instructions when the

appellant established a prima facie case of sex discrimination and the agency

failed to articulate a legitimate, nondiscriminatory reason for its adverse action).

When an employee has engaged in misconduct, she is not completely shielded

from the consequences of her misconduct by anti-discrimination/retaliation laws

or the whistleblower protection statutes. See Russell, 76 M.S.P.R. at 325. Rather,

The WPEA Senate report noted the concern that “legitimate and important agency

inquiries–including criminal investigations, routine background investigations for initial

employment, investigations for determining eligibility for a security clearance, IG

investigations, and management inquiries of potential wrongdoing in the workplace–not

be chilled by fear of challenge and litigation.” S. Rep. No. 112-155, at 21.

those laws shield an employee only to the extent that the record supports a finding

that she would not have been disciplined except for her status as a whistleblower

or membership in a protected class. Id.; Creer, 62 M.S.P.R. at 658-64.

¶20 The consideration of evidence of an alleged retaliatory investigation does

not undermine Congress’s conclusion, or the U.S. Court of Appeals for the

Federal Circuit’s and the Board’s case law, that a retaliatory investigation does

not constitute an independently actionable personnel action under the

whistleblower protection statutes. Rather, our decision in Russell, and Congress’s

subsequent reliance on it, require the Board to consider alleged retaliatory

investigations as a part of its evaluations of an underlying personnel action. See

Sistek, 955 F.3d at 957; S. Rep. No. 112-155, at 21.

The agency failed to prove by clear and convincing evidence that it would have

initiated an investigation of the appellant absent her whistleblowing activity.

¶21 To prevail in a whistleblower reprisal case, that is, one in which an

appellant alleges that agency officials retaliated against her for whistleblowing by

taking or failing to take, or threatening to take or fail to take, a personnel action

covered under 5 U.S.C. § 2302(a)(2)(A), the agency must show by clear and

convincing evidence that it would have taken or failed to take the personnel

action absent the protected disclosure or activity. 5 U.S.C. §§ 1221(e),

2302(b)(8); Carr, 185 F.3d at 1322; Smith, 2022 MSPB 4, ¶ 23. In determining

whether the agency has met its burden, the Board generally considers the

following factors: (1) the strength of the agency’s evidence in support of its

action; (2) the existence and strength of any motive to retaliate by the agency

officials involved in the decision; and (3) any evidence that the agency takes

similar actions against employees who are not whistleblowers but who are

otherwise similarly situated. Carr, 185 F.3d at 1323; Smith, 2022 MSPB 4, ¶ 23.

¶22 When an appellant raises a claim of an alleged retaliatory investigation, and

the initiator of the investigation is a supervisor or management official who was

the subject of the appellant’s protected disclosure or protected activity, the Board

must assess the Carr factors somewhat differently. 9 In considering Carr factor

one—the strength of the agency’s evidence in support of the action, the Board

will consider the strength of the evidence that the agency official had when

reporting or initiating the investigation, rather than the evidence that was

discovered as a result of the report or investigation. 10 See Russell, 76 M.S.P.R.

at 326. Regarding Carr factor two, the Board will consider the motive to retaliate

on the part of the official who reported the misconduct or initiated the

investigation. Id. at 326-27. Relevant evidence may include whether the official

was the subject of the appellant’s whistleblowing activity or a resulting

investigation, whether the official suffered any consequences as a result of that

activity, whether the official knew about the activity when making the report or

initiating the investigation of the appellant, and how soon after the

whistleblowing or protected activity the report of misconduct or initiation of an

A distinction exists between reports of misconduct or investigations initiated by a

supervisor or management official and reports of misconduct or investigations initiated

by coworkers or other individuals. When the individuals who reported the misconduct

or initiated the investigation are not supervisory or management officials, no claim of a

retaliatory investigation by the agency may be established. See Carr, 185 F.3d at 1326.

By contrast, when, as here, the individual initiating the investigation is a management

official, we must consider whether the initiation of the investigation was retaliatory.

See Russell, 76 M.S.P.R. at 325.

This is similar to the established principle in cases involving claims of reprisal for

protected disclosures and activities that the relevant inquiry is what the management

official knew at the time of the personnel action. Schneider v. Department of Homeland

Security, 98 M.S.P.R. 377, ¶ 19 (2005); Ray v. Department of the Army, 97 M.S.P.R.

101, ¶ 23 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table). It follows that,

because the purpose of an investigation is to uncover facts, just as the agency’s

personnel action cannot be based on information obtained through a retaliatory

investigation, an investigation cannot be deemed retaliatory merely because a

management official’s concerns were not borne out during a subsequent investigation.

An agency need not wait to investigate reasonable allegations of employee misconduct

until the misconduct becomes more severe or obvious. Cf. Thomas v. Department of the

Army, 2022 MSPB 35, ¶ 27 (explaining that an agency does not have to tolerate

inappropriate conduct of a sexual nature until it becomes so pervasive and severe that it

exposes the agency to liability under the equal employment opportunity statutes);

Lentine v. Department of the Treasury, 94 M.S.P.R. 676, ¶ 13 (2003) (same).

investigation began. 11 Id. Finally, when considering Carr factor three, the Board

will assess whether the relevant officials reported or initiated investigations

against similarly situated employees who were not whistleblowers. 12 Id. at 327.

¶23 An appellant’s decision to raise a claim of a retaliatory investigation does

not foreclose raising a claim of whistleblower reprisal based on the personnel

action that is closely related to the investigation. Thus, an appellant may pursue a

claim of reprisal for having made a protected disclosure or engaged in protected

activity, a claim that she was subjected to a retaliatory investigation, or both

claims simultaneously. Cf. Wilson v. Small Business Administration, 2024 MSPB

3, ¶¶ 12, 19 (holding that an appellant may attempt to prove a claim of

discrimination under the motivating factor and but-for causation methods

simultaneously, and may choose to show but-for causation under the pretext

In considering the second Carr factor for allegations of reprisal for protected

disclosures and activities, applicable precedent requires that we consider whether the

management officials involved may have had a professional motive to retaliate.

Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding that

those responsible for the agency’s overall performance may be motivated to retaliate

against a whistleblower because, even if they are not directly implicated by the

disclosures, the criticism reflects on them in their capacities as managers and

employees); see Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019-20

(Fed. Cir. 2019) (considering the possible presence of a professional motive to retaliate

based on the appellant’s criticism of an agency Under Secretary); Wilson v. Department

of Veterans Affairs, 2022 MSPB 7, ¶ 65. The Board also has applied the “cat’s paw”

theory to the second Carr factor in whistleblower reprisal matters, under which a

particular management official, acting because of an improper animus, influences

another agency official who is unaware of the improper animus when implementing a

personnel action. Karnes v. Department of Justice, 2023 MSPB 12, ¶ 19. We find that

these principles also may apply, when appropriate, to our analysis of the second Carr

factor when considering retaliatory investigations.

The failure to produce evidence related to the third Carr factor cannot weigh in the

agency’s favor and may cause it to fail to meet its clear and convincing burden.

Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans Affairs, 2023 MSPB

16, ¶ 42. The Board has recognized, however, that there may be situations in which the

agency produces persuasive evidence that there are no comparators, and in such

situations, the third Carr factor would be removed from the analysis. Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 18 n.9. We find that these same

principles may apply, when appropriate, to an analysis of the third Carr factor when

considering retaliatory investigations.

framework and mixed-motive framework simultaneously). When an appellant

chooses to raise both a whistleblower reprisal claim based on the personnel action

that follows the investigation and a retaliatory investigation claim in the same

appeal, a separate and distinct Carr factor analysis may be necessary to eliminate

any confusion that might flow from a commingling of the claims. Because the

only claim now before us is that the investigation was initiated in reprisal for the

appellant’s protected whistleblowing activity, we need not engage in such a

bifurcated analysis here. 13

¶24 In sum, we hold that, when an appellant makes a claim that the personnel

actions at issue are the result of a retaliatory investigation, the Board must first

consider whether the appellant established by preponderant evidence that the

investigation is so closely related to the personnel action that it could have been a

pretext for gathering evidence to retaliate. If the Board finds in the affirmative, it

will consider the Carr factors as they relate to the report of alleged misconduct

and initiation of an investigation. If the agency fails to show by clear and

convincing evidence that it would have reported the alleged misconduct or

initiated the investigation in the absence of the appellant’s protected disclosure or

protected activity, then the appellant must prevail on her whistleblower reprisal

claim and is entitled to corrective action with respect to the resulting personnel

action. Russell, 76 M.S.P.R. at 327-28 (ordering the agency to cancel the

appellant’s demotion that resulted from a retaliatory report of misconduct and

subsequent investigation).

In the initial decision, the administrative judge considered whether the agency proved

by clear and convincing evidence that it would have suspended the appellant for 15 days

and reassigned her in the absence of her protected whistleblowing activity. ID at 12-19.

On review, the appellant argues that the administrative judge erred in analyzing the

strength of the agency’s evidence in support of the 15-day suspension as it relates to the

charge of failure to follow instructions because the instruction was not sufficiently

clear, given that it failed to account for situations like those present in this case. PFR

File, Tab 9 at 13-15. We need not address this argument because it concerns solely

whether the agency would have suspended the appellant in the absence of her

whistleblowing activity, and we are already ordering corrective action on that personnel

action as a result of the appellant’s retaliatory investigation claim.

Carr Factor 1

¶25 Turning to the facts before us, we first consider the strength of the evidence

that the Commander had before him when he reported the appellant’s misconduct

that led to the investigation. See Russell, 76 M.S.P.R. at 326. To reiterate, the

Commander reported the appellant to the OIG/JIC on August 29, 2016, for

“insubordination, failure to follow instructions, conflict of interest, and

attempting to use the EEO process to circumvent hiring rules.” IAF, Tab 16

at 128. In his report and request for investigation, he indicated that he learned of

the appellant’s involvement in the mediation on August 24, 2016, when the

DCRO contacted him. Id. He further stated that the appellant’s decision to serve

as the management official representing the agency at the mediation ignored his

prior instruction to bring mediation requests in EEO matters to his attention first

and, further, that he had concerns that the appellant’s personal relationship with

the mission support specialist constituted a conflict of interest. Id. At the

hearing, the Commander testified that, prior to the appellant’s involvement in the

mediation, he had given instructions to first approach him for discussions about

whether, and if so how, the agency would mediate an EEO complaint. HT -2

at 137-40, 153 (testimony of the Commander). The appellant does not dispute

that she was given these instructions. HT-1 at 205 (testimony of the appellant).

Additionally, the Commander testified that the mission support specialist and the

appellant were friends, in addition to having a supervisor/subordinate

relationship, and that the appellant was also the mission support specialist’s

mentor and had tried to arrange a training opportunity and noncompetitive

promotion for her in the recent past, which were included as terms of the

proposed settlement agreement. HT-2 at 146, 154 (testimony of the Commander).

Thus, he was aware of the potential conflict of interest in the appellant serving as

the agency representative in a mediation with the mission support specialist.

Accordingly, the Commander had support for his allegations before he filed the

report and requested an investigation into the appellant’s actions.

¶26 Nonetheless, a proper analysis of the agency’s burden in this regard requires

that all of the evidence be weighed together—both the evidence that supports the

agency’s case and the evidence that detracts from it. Whitmore v. Department of

Labor, 680 F.3d at 1353, 1368 (Fed. Cir. 2012); Shibuya v. Department of

Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013). With respect to the Commander’s

allegation of the appellant’s failure to follow his instruction to discuss with him

any EEO mediation request before the agency agreed to proceed, the record

establishes that his instruction did not include any specific direction on how to

proceed when the Commander himself was the subject of the EEO complaint,

which was the situation in this matter. HT-2 at 139 (testimony of the

Commander). Indeed, the appellant testified that she did not first approach the

Commander, pursuant to his instruction, because the EEO process is a “protected

process” designed to ensure confidentiality and informing the subject of the EEO

complaint would have a “chilling effect” on future reporting. HT-1 at 208

(testimony of the appellant). Further, the deciding official testified that having

the agency official alleged to have discriminated or retaliated against an employee

in the chain of decision making with respect to whether the agency should

mediate might “in and of itself create a conflict or the appearance of a conflict.”

HT-1 at 54-55 (testimony of the deciding official).

¶27 The record is unclear as to when the Commander became aware that he was

the subject of the EEO complaint. The appellant testified that they met when he

learned of her handling of the mediation to discuss the circumstances of the

mediation. HT-1 at 126 (testimony of the appellant). At that meeting, she

informed him that he was the named official in the EEO complaint and that she

did not believe it was appropriate to approach him for approval. Id. at 126-27.

However, we are unable to discern from the record when this meeting occurred,

and specifically, whether it occurred before or after the Commander reported the

appellant and requested an investigation into her actions.

¶28 Regarding the Commander’s allegation that the appellant’s involvement in

the mediation as the management official presented a conflict of interest, the

record shows that the agency had no policy at the time regarding who could serve

as a management official in an EEO mediation and, specifically, no policy

regarding whether a first-level supervisor or even a mentor could serve as the

management representative against the subordinate/mentee. HT-1 at 52-53, 206

(testimony of the deciding official and the appellant). Further, the record shows

that, before agreeing to serve as the management official for the EEO mediation,

the appellant confirmed with the DCRO that she, as the mission support

specialist’s first-line supervisor, could serve as management official. IAF,

Tab 16 at 246; HT-1 at 194-95 (testimony of the appellant). Additionally, the

appellant testified at the hearing that, throughout the course of the mediation

process, she attempted to contact at least four other agency officials to discuss

whether her serving as the management official would be appropriate. HT-1

at 197-204 (testimony of the appellant).

¶29 The record does not establish whether the Commander was aware of the

lack of a specific agency policy regarding who could serve as a management

official in an EEO mediation or whether he knew of the DCRO’s approval at the

time he reported the appellant’s alleged misconduct. Nor does the record show

whether the Commander was aware of the appellant’s efforts to obtain approval to

serve as the management official. Accordingly, after weighing all of the

evidence, we conclude that the Commander had evidence to report the appellant

and request an investigation into her alleged misconduct. This factor favors the

agency, but not to a strong degree.

Carr Factor 2

¶30 Turning to Carr factor two—the motive to retaliate on the part of the

official or officials who made the report or initiated the investigation—the

Commander admitted during the hearing that, when he reported the appellant and

requested an investigation, he was aware of her complaints to OSC and the

OIG/JIC. HT-2 at 155 (testimony of the Commander). Additionally, the

Commander was, himself, the subject of those complaints. IAF, Tab 10 at 19-35,

37-38, 40-43. Such circumstances generally suggest a strong motive to retaliate.

See Russell, 76 M.S.P.R. at 326 (concluding that agency officials had a strong

motive to retaliate when they were the subject of the appellant’s protected

disclosure and protected activity and were aware of the protected disclosure and

protected activity when they made their reports about the incidents that formed

the basis of the charged misconduct); see also Karnes v. Department of Justice,

2023 MSPB 12, ¶¶ 14, 33; Elder v. Department of the Air Force, 124 M.S.P.R.

12, ¶ 45 (2016) (finding a strong motive to retaliate when the deciding official

was the subject of a prior settlement agreement involving the appellant).

¶31 Moreover, the appellant filed the OSC and OIG/JIC complaints and made

her disclosure to the Commander in May of 2016, and less than 3 months later, in

August 2016, the Commander reported the appellant and requested an

investigation into her conduct. IAF, Tab 10 at 19-35, 37-38, 40-43, Tab 16

at 128. The appellant’s disclosure to the Commander informed him that she had

filed complaints with OSC and the OIG/JIC; thus, he was aware of those

complaints almost immediately. Such close temporal proximity between the

appellant’s protected activity/disclosure and the Commander’s decision to report

the appellant further evinces his motive to retaliate. See Russell, 76 M.S.P.R.

at 326. Additionally, the Commander testified at the hearing that he was upset

about the appellant’s language in the disclosure memorandum. HT-2 at 160-61

(testimony of the Commander). As set forth above, it is unclear whether the

Commander was aware of the lack of a specific agency policy regarding who

could serve as a management official in an EEO mediation or whether he knew of

the DCRO’s approval of that activity. An agency’s failure to investigate a charge

sufficiently before bringing an action might indicate an improper motive.

Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 30 (2011). Similarly,

we find that a failure to undertake sufficient factual inquiries before reporting

potential misconduct or initiating an investigation may indicate an improper

motive.

¶32 Nonetheless, we acknowledge that the record establishes that the

Commander did not suffer any negative consequences as a result of the

appellant’s OSC and OIG/JIC complaints against him and, to the contrary, he was

moved to a different position that required a higher level of responsibility

following a selection by the Secretary of the Department of Homeland Security.

HT-2 at 162 (testimony of the Commander). That the Commander did not suffer

any negative consequences from the appellant’s complaints, though, does not

diminish the considerable amount of evidence suggesting a strong motive to

retaliate. Accordingly, this factor weighs heavily against the agency.

Carr Factor 3

¶33 Turning to the third Carr factor, which considers whether the agency

reported misconduct or initiated investigations into similarly situated

nonwhistleblowers, the Commander testified at considerable length regarding the

incidents at issue here, yet he provided no testimony regarding whether he

reported another employee who was not a whistleblower and who engaged in the

same or similar conduct as the appellant. Nor has the agency put forth any

evidence to further support that proposition. Although the Commander testified

that he did not have a problem with anyone who complained to OSC and that it is

a process he could also “avail [him]self to,” such testimony sheds no light on

whether he or other agency officials reported or investigated other employees for

similar conduct. HT-2 at 161 (testimony of the appellant). Further, the deciding

official’s testimony that he considered the “likes and similars” in determining the

appropriate penalty also sheds no light on whether the agency reported or initiated

an investigation for the same alleged conduct when the employee was not a

whistleblower. HT-1 at 38 (testimony of the deciding official). Although the

investigative field officer with OPR testified that “serious misconduct” must be

reported pursuant to agency policy, and the Commander testified that he

considered the appellant’s actions “serious misconduct,” this testimony

nonetheless does not address whether a nonwhistleblower similarly would have

been reported and investigated. HT-2 at 101-02, 154-55 (testimony of the

investigative field officer and the Commander).

¶34 The agency had an opportunity to question the Commander about whether

he reported nonwhistleblower employees and requested investigations, but it did

not ask those types of questions. Thus, we find that the agency submitted little to

no evidence showing that the kind of matter reported here would have otherwise

been reported and investigated had the employee not been a whistleblower. When

the agency fails to introduce relevant comparator evidence, such an omission may

serve to tip the scales against the agency. Whitmore, 680 F.3d at 1374; Semenov

v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 42.

¶35 The agency’s burden of proving by clear and convincing evidence that it

would have reported the appellant and requested an investigation in the absence

of protected whistleblowing or activity requires it to produce in the mind of the

trier of fact a firm belief as to the allegations sought to be established. Salazar v.

Department of Veterans Affairs, 2022 MSPB 42, ¶ 34; Chambers v. Department of

the Interior, 116 M.S.P.R. 17, ¶ 28 (2011); 5 C.F.R. § 1209.4(e). Here, we are

not left with the firm belief that the agency would have initiated an investigation

into the appellant absent her protected whistleblowing activity. Although the

Commander had some sound reasons to request an investigation, his motive to

retaliate was strong, and the agency failed to present evidence showing that it

reported and initiated investigations into non-whistleblower employees for similar

conduct. Therefore, we find that the agency failed to prove by clear and

convincing evidence that it would have reported and initiated an investigation into

the appellant’s conduct absent her whistleblowing. Accordingly, we grant the

appellant’s request for corrective action with respect to her claim of a retaliatory

investigation and her subsequent suspension. See Russell, 76 M.S.P.R. at 328.

ORDER

¶36 We ORDER the agency to cancel the appellant’s 15-day suspension

effective January 8, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d

730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days

after the date of this decision.

¶37 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶38 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. The appellant, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶39 No later than 30 days after the agency tells the appellant that 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 in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶40 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶41 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 (5 C.F.R.

§ 1201.113).

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 out at Title 5 of

the United States Code (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 TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages, including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), 1221(g)(1)(A)(ii), which

you may be entitled to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that

while any Special Counsel investigation related to this decision is pending, “no

disciplinary action shall be taken against any employee for any alleged prohibited

activity under investigation or for any related activity without the approval of the

Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 14

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

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.

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. 15 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).

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.

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