Opinion

Marcus Milton v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARCUS MILTON, DOCKET NUMBER

Appellant, SF-1221-22-0584-W-1

DEPARTMENT OF VETERANS DATE: February 28, 2025

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Heather White , Esquire, Alysa Williams , Esquire, and Kathryn Black ,

Esquire, Washington, D.C., for the appellant.

Mickel-Ange Eveillard , Esquire, Los Angeles, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman*

Raymond A. Limon, Member

*Vice Chairman Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

denied his request for corrective action in this individual right of action (IRA)

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

review. We AFFIRM the initial decision to the extent it found that the appellant

did not prove that he made protected disclosures under 5 U.S.C. § 2302(b)(8).

However, we VACATE the administrative judge’s finding that the appellant did

not prove that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C),

but still DENY the appellant’s request for corrective action.

BACKGROUND

The appellant is a Registered Nurse at the Long Beach VA Medical Center.

Initial Appeal File (IAF), Tab 1 at 1, Tab 36 at 382. On March 14, 2022, the

appellant sent an email to several agency executives and employees titled

“Racism and deplorable conditions in the Long Beach VA ER [Emergency

Department (ED)],” with an attached letter signed by the appellant and three other

Black employees discussing their concerns about a lack of diversity in staffing in

the ED and a “systemic culture” of racism, retaliation, and retribution driven by

ED manager Sailor. IAF, Tab 1 at 18, 31-34. The appellant sent a follow-up

letter the next day with additional complaints, “on behalf of the Black staff

supervised” by Sailor. Id. at 17. The agency subsequently assigned a single

factfinder to look into the matter, but, after initial investigation, the Medical

Center Director authorized an Administrative Investigations Board (AIB) to

conduct a “broader investigation” into allegations of a hostile work environment

in the ED due to “the large scope and complexity of the issues.” IAF, Tab 28 at

51, 58, Tab 35 at 56, Tab 41 at 4-6.

The AIB panel interviewed the appellant on May 16, 2022, and the

appellant testified, among other things, that the culture of the ED was

“segregated, racist, volatile” and cliquish, and that he believed he had an

unfounded reputation of being loud or inappropriate with patients fostered

primarily by white women. IAF, Tab 36 at 383, 400. In the morning on May 19,

2022, the AIB notified agency leadership that, after interviewing several ED staff

members, there had been “numerous credible, serious allegations” of the

appellant’s “repeated inappropriate, offensive behavior towards patients” as well

as ED staff and that it was going to interview the appellant a second time about

these allegations. IAF, Tab 28 at 18-19. The AIB stated that a “vast majority of

staff reporting incidents fear retaliation and being labeled racist for coming

forward,” and that it was “conceivable” that the appellant could identify those

who testified against him, and it thus recommended that the appellant be

immediately detailed outside of the ED area and “not engage in further patient

care” until the allegations could be investigated. Id. at 19. The AIB interviewed

the appellant a second time that afternoon and, immediately following his

interview, the agency placed him on administrative leave until May 25, 2022, and

then detailed him out of the ED. IAF, Tab 1 at 35, Tab 36 at 444-91, Tab 41 at 6.

The AIB eventually issued a report on September 12, 2022, concluding that the

ED does not have a culture of racism and/or discrimination, but that there is an

unhealthy work environment and culture of fear that Sailor, the appellant, and two

other individuals were “most responsible for,” and recommending, among several

things, that the appellant be “immediately removed from his position in the [ED]

and that subsequent disciplinary action be pursued up to potential termination.”

IAF, Tab 35 at 64-88.

On June 16, 2022, before the report was issued, the appellant filed a

complaint with the Office of Special Counsel (OSC) repeating many of the claims

he made in his emails to the agency and before the AIB, discussing an Equal

Employment Opportunity (EEO) complaint he filed against Sailor, and claiming

that he was being detailed because of his testimony to the AIB, with a pay cut and

no explanation of the accusations. IAF, Tab 1 at 20-30. On July 8, 2022, OSC

closed out the appellant’s case and informed him of how to file an IRA appeal

with the Board. IAF, Tab 5. The instant, timely Board appeal followed. IAF,

Tab 1. During the prehearing process, the administrative judge issued an order

finding that the appellant nonfrivolously alleged that he made two specific

protected disclosures under 5 U.S.C. § 2302(b)(8) and engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(C), and that the alleged protected

disclosures and activity were a contributing factor in a personnel action as

defined by 5 U.S.C. § 2302(a)(2), and thus that the Board had jurisdiction over

his appeal. IAF, Tab 10. The administrative judge explicitly found that the

appellant did not establish jurisdiction over any remaining alleged protected

disclosures, including his allegations that the agency retaliated against him for

engaging in protected EEO activity and for alleging that his workplace was

permeated with racism. Id. at 7-8. The appellant later withdrew his request for a

hearing and the administrative judge subsequently issued an initial decision based

on the written submissions, denying corrective action. IAF, Tab 48, Initial

Decision (ID) at 1-2.

In the initial decision, the administrative judge first concluded that the

appellant did not prove by preponderant evidence that he made protected

disclosures under 5 U.S.C. § 2302(b)(8). ID at 10-14. The administrative judge

explained that disclosure 1 concerned the appellant’s reports of Sailor’s bullying

and harassment in his emails to management on March 14-15, 2022, and that

disclosure 2 concerned the appellant’s reporting that Sailor failed to investigate

an employee’s complaint that a male nurse touched her in an inappropriate and

threatening manner in his emails to management on March 14-15, 2022. ID at 12-

13; see also IAF, Tab 10 at 4. The administrative judge found that the appellant

did not prove that he disclosed an abuse of authority or that he reasonably

believed that he was reporting a violation of a law, rule or regulation,

respectively. ID at 12-14. The administrative judge also concluded that the

appellant did not prove that he engaged in protected activity under 5 U.S.C.

§ 2302(b)(9)(C) when he testified before the AIB because the appellant’s

testimony was entirely focused on racism as part of the general hospital culture

and his allegation that Sailor retaliated against him for filing an EEO complaint.

ID at 14-15. The administrative judge noted that she did not find any “clear legal

authority” to support a conclusion that such testimony is independently protected

under § 2302(b)(9)(C). ID at 15. The administrative judge thus concluded that

the appellant did not prove by preponderant evidence that he made a protected

disclosure or otherwise engaged in protected activity authorized by statute, and

she therefore denied corrective action. ID at 15-16.

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

File, Tab 1. On review, he argues that he made several non-EEO protected

disclosures to the AIB, that his testimony before the AIB was protected activity,

that he suffered a covered personnel action, and that he proved that his alleged

protected disclosures and activity were a contributing factor in his detail. Id.

The agency filed a response, and the appellant filed a reply. PFR File, Tabs 3, 4.

OSC filed an amicus brief offering its views on the protected activity issue,

urging the Board to grant the appellant’s petition for review and find that the

administrative judge erred in analyzing the content of the appellant’s testimony to

the AIB instead of focusing on the protected activity of his cooperation with the

AIB. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The parties have not disputed the administrative judge’s finding of Board

jurisdiction, and we see no reason to disturb it. IAF, Tab 10; ID at 1. To prevail

on the merits of an IRA appeal, an appellant must meet his initial burden of

proving by preponderant evidence that (1) he made a protected disclosure

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

under 5 U.S.C. § 2302(b)(9)(A)(i), 2 (B), (C), or (D); and (2) the disclosure or

protected activity was a contributing factor in the agency’s decision to take or fail

to take a personnel action as defined by 5 U.S.C. § 2302(a). Karnes v.

Department of Justice, 2023 MSPB 12, ¶ 8. If the appellant makes out a prima

Under 5 U.S.C. § 2302(b)(9)(A)(i), it is a protected activity to exercise “any appeal,

complaint, or grievance right granted by any law, rule, or regulation . . . with regard to

remedying a violation of [5 U.S.C. § 2302(b)(8)].”

facie case, then the agency is given an opportunity to prove by clear and

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

absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu v. Department

of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).

The administrative judge correctly found that the appellant did not prove that he

made protected disclosures under 5 U.S.C. § 2302(b)(8).

On review, the appellant briefly reasserts that disclosures 1 and 2,

regarding his March 2022 emails to agency management disclosing racist staffing

decisions and the physical assault of an employee, are protected disclosures. PFR

File, Tab 1 at 24-25. To establish that he made a protected disclosure, the

appellant must demonstrate by preponderant evidence that he disclosed

information that he reasonably believed evidenced a violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial or specific danger to public health or safety. 5 U.S.C. § 2308(b)

(8); Mithen v. Department of Veterans Affairs, 119 M.S.P.R. 215, ¶ 13 (2013). In

the initial decision, the administrative judge thoroughly explained that she found

these communications not protected under 5 U.S.C. § 2302(b)(8) because, among

other things, the appellant did not show that he reasonably believed particular

examples of Sailor’s alleged bullying evidenced an abuse of authority, and

because he did not reasonably believe he was reporting a violation of law, rule, or

regulation in alleging that Sailor failed to investigate a physical assault in the

workplace. ID at 12-14. In his petition, the appellant does not claim that the

administrative judge erred in her analysis; he instead simply reasserts his

arguments from below. PFR File, Tab 1 at 20, 24-25. We thus see no reason to

disturb the administrative judge’s findings. See Yang v. U.S. Postal Service,

115 M.S.P.R. 112, ¶ 12 (2010) (arguments that constitute mere disagreement with

the initial decision do not provide a basis to grant the petition for review); Crosby

v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb

the administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions on issues of

credibility).

The appellant also alleges for the first time on review that he made several

protected disclosures in his testimony to the AIB. PFR File, Tab 1 at 18-24. For

example, he claims that he disclosed to the AIB that two ED nurses demanded he

illegally chart for a patient he did not treat, which would have resulted in a

potential violation of the Emergency Medical Treatment and Labor Act, id.

at 20-22, and that he disclosed that a doctor was being denied her statutorily

required military leave, id. at 23-24. However, the appellant did not raise these

alleged disclosures below before the administrative judge, despite being given an

explicit opportunity to do so. IAF, Tab 7 at 9-14, Tab 10 at 4-5, Tab 13 at 2,

Tab 43 at 35-37. Additionally, the appellant has not shown that he exhausted any

of these matters with OSC. ID at 10-11; IAF, Tab 1 at 20-30, Tab 5. Therefore,

we decline to consider these claims on review. See Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 10 (finding that the Board’s jurisdiction

over an IRA appeal is limited to matters an appellant raised with OSC (citation

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

(finding that an argument raised for the first time in a petition for review will not

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

previously available despite the party’s due diligence).

The administrative judge erroneously concluded that the appellant did not prove

that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).

Although we agree that the appellant failed to meet his burden concerning

his alleged protected disclosures under 5 U.S.C. § 2302(b)(8), we find that the

appellant did indeed meet his burden of showing that he engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). Specifically, under

5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity by

“cooperating with or disclosing information to the Inspector General (or any other

component responsible for internal investigation or review) of an agency, or the

Special Counsel, in accordance with applicable provisions of law[.]” As

discussed above, here, the appellant cooperated with and disclosed information to

the AIB. However, in the initial decision, the administrative judge concluded that

the appellant’s appearance before the AIB was not protected activity under

section 2302(b)(9)(C) because the appellant’s AIB testimony “was focused

entirely on racism” in the ED and as a part of the general hospital culture, and

was thus outside the Board’s jurisdiction in the context of an IRA appeal. ID

at 15. She noted that she found “no clear legal authority to support a conclusion

that the sort of AIB testimony at issue in this IRA appeal is independently

protected under § 2302(b)(9)(C).” ID at 15.

We disagree. Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)

(C), “any disclosure of information to OIG or OSC is protected regardless of its

content as long as such disclosure is made in accordance with applicable

provisions of law.” Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8

(emphasis added). The nature, or the content, of the disclosures to OIG or OSC

may be relevant at the merits stage of an IRA appeal, when the appellant must

prove the contributing factor element by preponderant evidence and the agency

must defend itself by providing clear and convincing evidence that it would have

taken the same personnel action absent the protected activity. Id., n.1. The fact

that the appellant’s testimony before the AIB implicated the protections of Title

VII does not preclude coverage under section 2302(b)(9)(C). Reese v.

Department of the Navy, 2025 MSPB 1, ¶ 46.

We thus turn to the question of whether the AIB constituted “any other

component responsible for internal investigation or review.” 5 U.S.C. § 2302(b)

(9)(C). In Reese, the Board clarified that the key question in determining whether

activity is protected under section 2302(b)(9)(C) is whether an appellant’s

activity was directed to a covered investigatory entity. Reese, 2025 MSPB 1,

¶ 48. The Board found that agency components as described in section 2302(b)

(9)(C) should have similar attributes and functions to those of the Offices of

Inspector General, although such attributes may vary from agency to agency. Id.,

¶ 50. In general, such components will have a degree of independence and

objectivity, as well as the authority to investigate or review by taking testimony,

collecting evidence, and making findings and recommendations. Id. The Board

determined that the statutory language's reference to “any” component is broad

enough to encompass not just permanent agency components but also ad hoc

internal investigations or reviews conducted pursuant to an established agency

procedure. Id., ¶ 51.

Applying these principles, we find that the AIB is undoubtedly a

“component responsible for internal investigation or review” under 5 U.S.C.

§ 2302(b)(9)(C). As discussed above, the plain language of the statute provides

that an appellant need only “cooperat[e] with” or “disclos[e] information to” such

an entity for it to be covered as protected activity. 5 U.S.C. § 2302(b)(9)(C); see

also Fisher, 2023 MSPB 11, ¶ 8. Therefore, the appellant’s cooperation with the

AIB is protected activity regardless of the content of that cooperation.

Consequently, we find that the appellant proved by preponderant evidence that he

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), and we vacate the

administrative judge’s finding to the contrary.

The appellant did not prove by preponderant evidence that his AIB testimony was

a contributing factor in the agency’s decision to detail him.

Having found that the appellant proved by preponderant evidence that his

testimony to the AIB was protected activity, we turn to the question of whether he

proved that this protected activity was a contributing factor in the agency’s

decision to detail him. 3 To prove that a protected disclosure or activity was a

contributing factor in a personnel action, the appellant need only demonstrate that

the fact of, or the content of, the disclosure or activity was one of the factors that

tended to affect the personnel action in any way. See Covington v. Department of

Under 5 U.S.C. § 2302(a)(2)(A)(iv), a “personnel action” includes “a detail, transfer,

or reassignment.”

the Interior, 2023 MSPB 5, ¶ 43. One way to establish contributing factor is the

knowledge/timing test. Smith v. Department of the Army, 2022 MSPB 4, ¶ 19.

The appellant can satisfy the test by proving that the official taking the action had

actual or constructive knowledge of the disclosure or activity, and the action

occurred within a period of time such that a reasonable person could conclude

that the disclosure or activity was a contributing factor in the personnel action.

Id. The knowledge portion of the knowledge/timing test can be met with

allegations of either actual or constructive knowledge. Abernathy v. Department

of the Army, 2022 MSPB 37, ¶ 15. However, the knowledge/timing test is not the

only way to prove contributing factor. Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 14 (2012). The Board will also consider other evidence,

such as evidence pertaining to the strength or weakness of the agency’s reasons

for taking the personnel action, whether the whistleblowing was personally

directed towards the officials taking the action, and whether these individuals had

a desire or motive to retaliate against the appellant. Id., ¶ 15.

Here, the appellant alleges that his AIB testimony was a contributing factor

in the agency’s decision to detail him. IAF, Tab 7 at 15; PFR File, Tab 1

at 25-26. In particular, he claims that he was “told that he was being detailed out

of the ED because of his own [AIB] testimony, not that of other witnesses.” PFR

File, Tab 1 at 26; see also IAF, Tab 1 at 21. We are not convinced. As noted

above, the AIB recommended detailing the appellant out of the ED before he

testified to the AIB a second time. See IAF, 28 at 18-19. Although the AIB may

have been convened in response to the appellant’s March 2022 emails, and even

though it interviewed the appellant on May 16, 2022 in regard to those March

2022 allegations, the AIB’s May 19, 2022 email to agency management

recommending that the appellant be detailed out of the ED clearly explained that

its recommendation was due to other employee allegations against the appellant

discovered in the course of its investigation. See id. Specifically, the AIB stated

it had received “numerous credible, serious allegations concerning [the

appellant’s] inappropriate behavior towards patients and staff,” and it discussed

several allegations including that the appellant had failed to communicate

patients’ worsening conditions and delayed in following doctors’ orders, used

profanity in front of patients, and called employees “white bitches.” Id. The

AIB’s recommendation email does not mention the appellant’s first AIB

testimony. Id. Furthermore, the appellant acknowledges in his complaint to OSC

that the agency notified him prior to his second AIB interview that it was going to

detail him from the ED. IAF, Tab 1 at 21.

Additionally, both the Medical Center Director and the Deputy Associate

Director for Patient Care Services, who chartered the AIB, declared in affidavits

that detailing an employee who is the subject of an investigation is standard

practice to protect the integrity of the investigation. IAF, Tab 41 at 4-13. Both

of these officials discussed that the AIB recommended detailing the appellant due

to patient safety concerns and concerns of inappropriate behavior towards other

staff, which we find are very serious issues requiring immediate action on the

party of the agency. Id. at 6, 11; see also IAF, Tab 28 at 63-91. To this end, the

AIB pointed out that it was “conceivable” the appellant could identify those who

testified against him, so he needed to be removed from the proximity of the ED,

which seems reasonable. IAF, Tab 28 at 19. The Medical Center Director

acknowledged that he supported the AIB’s recommendation to detail the appellant

since the AIB was “in the best position to make that recommendation based on

the evidence.” Id. at 6. And with regard to the AIB, both Directors declared in

their affidavits that the AIB was a neutral, unbiased panel. IAF, Tab 41 at 7, 10.

Furthermore, the allegations in the appellant’s March 2022 emails and his

May 16, 2022 AIB testimony centered around other agency employees—primarily

ED supervisor Sailor—and not the members of the AIB panel, which was only

convened after the appellant made his first allegations of a racist and retaliatory

culture within the ED. See IAF, Tab 1 at 31.

Consequently, considering all of the evidence, we find that the appellant

has not proven that his protected activity—his testimony to the AIB—was a

contributing factor in the agency’s decision to detail him. Because we find that

the appellant failed to establish a prima facie case of whistleblower reprisal, it is

thus unnecessary to proceed to the clear and convincing test. See Scoggins v.

Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016).

We deny the appellant’s request for corrective action.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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.

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.

(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. 5 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

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.