Opinion

Eric Bennett v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Mar 13, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC BENNETT, DOCKET NUMBERS

Appellant, NY-0752-14-0073-X-1

NY-0752-14-0073-C-2

DEPARTMENT OF

TRANSPORTATION, DATE: March 13, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jonathan Bell , Esquire, and Susan Tylar , Esquire, Syosset, New York, for

the appellant.

Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency.

Briana Martino , Des Plaines, Illinois, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member

FINAL ORDER

In an October 26, 2022 Order, the Board found the agency in noncompliance

with its final decision in the underlying appeal, which reversed the appellant’s

removal and ordered him reinstated with back pay and benefits, to the extent the

agency: (1) failed to pay him a $6,000 bonus as part of his back pay award; and

A nonprecedential order is one that the Board has determined does not add significantly

to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders

have no precedential value; the Board and administrative judges are not required to

follow or distinguish them in any future decisions. In contrast, a precedential decision

issued as an Opinion and Order has been identified by the Board as significantly

contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

(2) failed to provide sufficient and clear information regarding the overtime hours

the appellant was entitled to in his back pay award. Bennett v. Department of

Transportation, MSPB Docket No. NY-0752-14-0073-C-2, Order (Oct. 26, 2022).

Subsequently, in the compliance referral matter, the Board issued Orders finding

that the agency complied with its obligations to pay the $6,000 bonus and to

determine and explain the total number of hours of overtime the appellant was

entitled to for the entire back pay period (754 hours). Bennett v. Department of

Transportation, MSPB Docket No. NY-0752-14-0073-X-1, Compliance Referral

File (CRF), Tabs 5, 11. However, the Board found that the agency remained in

noncompliance to the extent it failed to demonstrate that it properly calculated and

paid the appellant the appropriate amount of overtime back pay for the 754 hours of

overtime, with interest, and again ordered the agency to submit evidence and

explanation demonstrating compliance. CRF, Tab 11.

For the reasons discussed below, we now find the agency in compliance and

dismiss the petition for enforcement and the petition for review.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

The appellant, an Air Traffic Control Specialist, sustained an on -the-job

injury on March 25, 2011, and the Office of Workers’ Compensation Programs

(OWCP) accepted his claim for traumatic injury. Bennett v. Department of

Transportation, MSPB Docket No. NY-0752-14-0073-I-2, Refiled Appeal File,

Tab 21, Initial Decision (ID) at 2-3. Effective November 9, 2013, the agency

removed the appellant from Federal service due to his continuing unavailability for

duty, noting that he had not reported for regular, full-time duty since his March 25,

2011 injury. ID at 1, 12-13. The appellant appealed his removal to the Board. In a

July 29, 2016 initial decision, the administrative judge reversed his removal and

ordered the agency to reinstate him effective November 9, 2013, with all

appropriate back pay, interest, and restored benefits. ID at 27, 37. Neither party

petitioned for review of the initial decision, which became final on September 2,

2016. ID at 39.

The appellant petitioned for enforcement of the initial decision, arguing, in

relevant part, that the agency failed to pay him a bonus he would have received but

for the removal and failed to correctly calculate his overtime back pay. Bennett v.

Department of Transportation, MSPB Docket No. NY-0752-14-0073-C-1,

Compliance File (C-1 CF), Tab 1; Bennett v. Department of Transportation, MSPB

Docket No. NY-0752-14-0073-C-2, Compliance File (C-2 CF), Tab 6 at 6-8. In an

August 1, 2017 compliance initial decision, the administrative judge found the

agency in noncompliance only to the extent it failed to pay the appellant $6,000 in

bonus payments. C-2 CF, Tab 11, Compliance Initial Decision (CID) at 3-6. The

appellant petitioned for review of the compliance initial decision.

In an October 26, 2022 Order, the Board affirmed the compliance initial

decision except as modified to find that the agency’s failure to present clear and

understandable information regarding its overtime back pay calculation constituted

an additional basis of agency noncompliance. Oct. 26, 2022 Order, ¶¶ 1, 8-13.

The Board ordered the agency to submit, into the compliance referral matter,

evidence and a narrative statement of compliance demonstrating that it properly

calculated the appellant’s pre-removal overtime hours and that the back pay

awarded to the appellant reflected that calculation. Id., ¶ 14.

After receiving responses from both parties, CRF, Tabs 3-4, the Board issued

a June 12, 2023 Order in this compliance referral matter finding the agency in

compliance with its obligation to pay the appellant $6,000 in bonus back pay but

still in noncompliance with its obligation to demonstrate that it had properly

calculated and paid the appellant the appropriate amount of overtime back pay with

interest for the entire back pay period (November 9, 2013, through November 6,

2016), CRF, Tab 5. Consequently, the Board again ordered the agency to submit

evidence and explanation demonstrating compliance. Id. at ¶¶ 14-18. Both parties

responded. CRF, Tabs 7-10.

In an October 31, 2024 Order, the Board found that the agency had

established compliance with its obligation to determine and explain the total

number of hours of overtime the appellant was entitled to for the entire back pay

period and accepted the agency’s conclusion that he was entitled to back pay for a

total of 754 hours of overtime. CRF, Tab 11 at 4. However, the Board found that

the agency remained in noncompliance with its obligations to correctly calculate

and pay the appellant’s overtime back pay award and to present clear and

understandable evidence to the Board showing that such calculations and payments

were accurate. Id. at 5-8. Accordingly, the Board ordered the agency to submit

affidavit and documentary evidence and a detailed narrative establishing that it had

properly calculated and paid the appellant for 754 hours of overtime and interest on

that amount. Id. In addition, the Board ordered the agency to verify that it had in

fact paid the appellant the correct amount in back pay and at the correct hourly rate

for the 90.35 additional hours of overtime it conceded he was entitled to in its

July 2023 submissions. Id. Both parties have responded. CRF, Tabs 12-16.

ANALYSIS

When, as here, the Board finds a personnel action unwarranted, the aim is to

place the appellant, as nearly as possible, in the situation he would have been in had

the wrongful personnel action not occurred. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,

100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.

2006). The agency bears the burden to prove compliance with the Board’s order by

a preponderance of the evidence. 2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.

§ 1201.183(d). An agency’s assertions of compliance must include a clear

explanation of its compliance actions supported by documentary evidence.

Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

As noted above, the only outstanding issues in this compliance matter are

whether the agency has properly calculated and paid the appellant for 754 hours of

overtime and interest on that amount and adequately explained its actions to the

Board. CRF, Tab 11.

Overtime Back Pay

Under the Fair Labor Standards Act (FLSA), an employee’s overtime

entitlement includes: (1) the straight time rate of pay times all overtime hours

worked; plus (2) one-half times the employee’s hourly regular rate of pay times all

overtime hours worked. 5 C.F.R. § 551.512(a). An employee’s “straight time rate

of pay” is “equal to the employee’s rate of pay for his or her position (exclusive of

any premiums, differentials, or cash awards or bonuses),” with exceptions not

present here for annual premium pay. 5 C.F.R. § 551.512(b). An employee’s

“hourly regular rate” is the amount “computed by dividing the total remuneration

paid to an employee in the workweek by the total number of hours of work in the

workweek for which such compensation was paid.” 5 C.F.R. § 551.511(a).

In response to the Board’s October 31, 2024 Order, the agency submitted a

declaration under penalty of perjury from a Senior Payroll Program Specialist,

Leave and Earnings Statements (LES), and overtime pay calculation tables

reflecting that the agency paid the appellant for 754 hours of overtime via three

separate payments. CRF, Tab 12. These three payments were made as follows:

1. On December 20, 2016 (pay period 2016-16), the agency paid the

appellant $48,573.25 in gross pay for 385 hours and 20 minutes of

overtime for the overtime he would have worked from pay period 5 of

2015 through pay period 17 of 2016, id. at 8-9, 17, 24;

2. On May 23, 2017 (pay period 2017-11) 3 , the agency paid the appellant

$37,870.71 in gross pay for 309 hours and 50 minutes of overtime for

the overtime he would have worked from pay period 24 of 2013

through pay period 5 of 2015, id. at 9-10, 2, 25; and

3. On July 25, 2023 (pay period 2023-15), the agency paid the appellant

$7,447.27 in gross pay for an additional 58 hours and 50 minutes of

overtime he would have worked across 2013, 2015, and 2016, id.

at 10-11, 23, 26.

The Senior Payroll Program Specialist stated that the appellant’s July 2023

payment was only for 58 hours and 50 minutes of overtime, instead of the

90.35 additional hours of overtime the agency had previously stated he was entitled

to, because the other 32 hours had actually been paid in the May 2017 payment. Id.

at 11. She explained that the discrepancy occurred because she was provided

timecards for pay periods that had already been paid. Id.

The Senior Payroll Program Specialist also explained and provided

worksheets showing that the agency calculated the appellant’s overtime pay by

adding his “straight time rate” to his “FLSA rate,” which is ½ of his “hourly regular

rate,” and then multiplying this total by the number of overtime hours for each pay

period. Id. at 8, 13-14. She stated that, across the three payments, the appellant’s

straight time rate ranged from approximately $75 to $81 and the FLSA rate

fluctuated each pay period depending on how much other premium pay the

appellant received during the pay period. Id. at 9-11.

The appellant responded that the agency had failed to adequately explain the

overtime payments. CRF, Tab 13 at 5-6. He also argued that his standard hourly

rate was approximately $80 and that the overtime rate should thus be approximately

$120 per hour. Id. at 6. The appellant further argued that the agency had not

The Senior Payroll Program Specialist explained that the May 2017 overtime was paid

using an “outside the system payment,” which caused the payment made in pay period

2017-11 to be shown in the adjustment column of the LES for pay period 2017-12. CRF,

Tab 12 at 9-10, 19-22.

adequately explained why the additional 90.35 hours of overtime back pay the

agency conceded it owed him had been reduced to 58 hours and 10 minutes. Id.

at 6-7.

On December 24, 2024, the agency submitted another declaration under

penalty of perjury from the Senior Payroll Program Specialist further explaining

the overtime pay calculations. CRF, Tab 14. In the declaration, she stated that the

appellant was paid at a different overtime hourly rate in each pay period due to the

fluctuating FLSA rate and that each rate could be determined from the tables

provided in its prior submission by dividing the total overtime pay for each pay

period by the number of overtime hours shown. Id. at 8-9 (citing CRF, Tab 12

at 24-27). She noted that a sample of three pay periods from the tables reflected

hourly overtime rates of $125.74, $123.24, and $122.08. Id. at 9.

In a January 21, 2025 reply, the appellant argued that the Senior Payroll

Program Specialist’s declaration was confusing to the extent it referred to four

overtime payments, as she previously stated there were three. CRF, Tab 15 at 4-5.

He also argued that the agency had still failed to explain why it represented that the

appellant was owed an additional 90.35 hours of overtime but then only paid him

for 58 hours and 10 minutes of overtime in its July 2023 payment. Id. at 6.

On January 30, 2025, the agency submitted another affidavit from the Senior

Payroll Program Specialist addressing the appellant’s concerns. CRF, Tab 16. The

appellant did not respond to the agency’s final submission.

After carefully considering the parties’ submissions, we find that the

agency’s evidence and explanation establishes that it correctly applied the FLSA

overtime formula to determine the appellant’s overtime pay rate for each pay

period and applied those rates to the hours of overtime owed per pay period. CRF,

Tabs 12, 14, 16; 5 C.F.R. § 551.512. We further find that the agency has shown

that it paid the appellant $48,573.25 for 385 hours and 20 minutes of overtime in

December 2016; $37,870.71 for 309 hours and 50 minutes of overtime in

May 2017; and $7,447.27 for 58 hours and 50 minutes of overtime in July 2023—

i.e., a total of $93,891.23 for the full 754 hours of overtime owed to him at an

average overtime hourly rate of $124.52 ($93,891.23 divided by 754 = $124.52).

CRF, Tab 12 at 8-10, 17-27. Although the appellant argued that the agency’s first

two responses to the Board’s October 31, 2024 Order failed to adequately explain

its overtime calculations, he has not presented any specific challenge to the

agency’s calculation of his hourly overtime rate—the average of which exceeds the

$120 rate to which he argued he was entitled—and has not disputed the agency’s

evidence showing that he has now been paid for the full 754 hours of overtime.

CRF, Tabs 13, 15.

To the extent the appellant remains unsatisfied with the agency’s explanation

as to why it stated in July 2023 that it owed him an additional 90.35 hours of

overtime but then paid him only for an additional 58 hours and 50 minutes of

overtime, we conclude this discrepancy does not preclude a finding of compliance.

The Senior Payroll Program Specialist explained that part of the 90.35 overtime

hours she believed had not yet been paid to the appellant had in fact been paid in the

prior back pay payment and that the error resulted from her receipt of official time

cards that had already been paid. CRF, Tab 12 at 11. In any event, the agency’s

evidence shows that the appellant has been paid for the full 754 hours of overtime

back pay in accordance with the Board’s Order. CRF, Tab 11.

In light of the above, we find the agency in compliance with its obligation to

pay the appellant the appropriate amount of overtime back pay.

Interest on the Overtime Back Pay

Under the Back Pay Act, an employee is entitled to interest on, inter alia,

overtime back pay he receives as part of his Back Pay Award. See 5 U.S.C.

§ 5596(b)(1)(A)(i), (2)(A); see also 5 C.F.R. § 550.803, .806. Such interest:

(i) shall be computed for the period beginning on the effective date of

the withdrawal or reduction involved and ending on a date not more

than 30 days before the date on which payment is made;

(ii) shall be computed at the rate or rates in effect under section 6621(a)

(1) of the Internal Revenue Code of 1986 during the period described in

clause (i); and

(iii) shall be compounded daily.

5 U.S.C. § 5596(b)(2)(B); 5 C.F.R. § 550.806. During the back pay period at issue

in this appeal (November 9, 2013, through November 6, 2016), the interest rate

under section 5596(b)(2)(B)(ii) was 3% until January 1, 2016, and then increased

to 4% through the remainder of the back pay period. OPM Fact Sheet: Interest

Rates Used for Computation of Back Pay, https://www.opm.gov/policy-data-

oversight/pay-leave/pay-administration/fact-sheets/interest-rates-used-for-

computation-of-back-pay/ (last visited Mar. 12, 2025).

In its first response to the Board’s October 31, 2024 Order, the agency

provided the Senior Payroll Program Specialist’s declaration, LES, and overtime

hours and pay tables showing that the agency paid the appellant interest in the

following three payments:

1. On December 20, 2016 (pay period 2016-16), the agency paid the

appellant $2,062.20 in interest on the $48,573.25 overtime payment for

overtime he would have worked from pay period 5 of 2015 through pay

period 17 of 2016, id. at 8-9, 17, 24;

2. In May 2017 (pay period 2017-11), the agency paid the appellant

$28,369.21 in interest on the $37,870.71 overtime payment for

overtime he would have worked from pay period 24 of 2013 through

pay period 5 of 2015, id. at 9-10, 19, 25; and

3. On July 25, 2023 (pay period 2023-15), the agency paid the appellant

$2,678.69 in interest on the $7,447.27 in overtime pay for additional

overtime he would have worked in 2013, 2015, and 2016, id. at 10-11,

23, 26.

The appellant responded that the agency’s explanation regarding the interest

payments was unclear, did not demonstrate that such payments were made, and did

not demonstrate how they were calculated. CRF, Tab 13 at 5-7. In response, the

agency submitted the Senior Payroll Program Specialist’s second declaration, in

which she attested that the agency calculated the interest payments using the

Internal Revenue Service (IRS) Tax Interest Software, which uses interest rates set

by the IRS, “calculates compound interest on a daily basis and displays it on a pay

period basis,” and bases the interest payment on the full payment for the pay period

through the official pay date. CRF, Tab 14 at 10. She stated that the interest on the

overtime reflected on the LES with an end date of May 27, 2017, was “actually paid

and reflected in the preceding LES with an ending date of ‘2017 -05-13’,” but that

the other two interest payments were reflected on the same LES as the payment for

the overtime itself. Id. at 9-10.

The appellant responded that the agency had still failed to clearly explain the

interest payments. CRF, Tab 15 at 4-5. In particular, he argued that the Senior

Payroll Program Specialist referenced four overtime payments in her latest

declaration, even though she previously stated there were only three. Id. He also

questioned why the $28,369.21 in interest on the $37,870.71 overtime payment was

“so much” and how it could be paid before the actual overtime payment. Id.

The Senior Payroll Program Specialist responded under penalty of perjury

that the interest was processed normally in pay period 2017-11 through the official

pay date for the pay period (May 23, 2017) and that the associated overtime

payment was sent to the bank on May 19, 2017, which was before the official pay

date for pay period 2017-11. CRF, Tab 16 at 7. However, because the overtime

payment was paid via the “paid daily” process, it showed on the LES for pay period

2017-12. Id. Regarding the amount of the $28,369.21 interest payment, the Senior

Payroll Program Specialist explained that the interest was calculated from the time

the payment should have been paid until it actually was paid, compounding on a

daily basis, at the applicable rate provided by the IRS in its tax software, rather than

“simple interest.” Id. at 8. Lastly, she explained that her reference to four overtime

payments was a misstatement on her part; she clarified that there were four

payments in total that included interest but only three payments that included

overtime. Id. at 8. The appellant did not respond.

We find that the agency’s evidence and explanation establish that it has

properly calculated and paid the appellant the correct amount of interest on the

overtime back pay in accordance with 5 U.S.C. § 5596(b)(2)(B). In so finding, we

credit the Senior Payroll Program Specialist’s declarations under penalty of perjury

that the agency calculated the interest on the overtime back pay from the time the

appellant would have earned the overtime pay through the official pay date of the

overtime payment and used the IRS-provided interest rates to calculate the interest,

which was compounded daily. CRF, Tab 14 at 10, Tab 16 at 8. The appellant has

not denied receiving the three interest payments or identified any specific error in

the agency’s calculations. Accordingly, we find the agency in compliance with its

obligation to calculate and pay the correct amount of interest on the overtime back

pay payments and to explain its calculations to the Board.

CONCLUSION

In light of the foregoing, we find that the agency is in compliance with its

outstanding compliance obligations and dismiss the appellant’s petition for

enforcement and the petition for review. This is the final decision of the Merit

Systems Protection Board in these compliance proceedings. Title 5 of the Code of

Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

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

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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must

file your attorney fees motion with the office that issued the initial decision on your

appeal.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such review

and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we

offer the following summary of available appeal rights, the Merit Systems

Protection Board does not provide legal advice on which option is most appropriate

for your situation and the rights described below do not represent a statement of

how courts will rule regarding which cases fall within their jurisdiction. If you

wish to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below

to decide which one applies to your particular case. If you have questions about

whether a particular forum is the appropriate one to review your case, you should

contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

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.

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

courtappointed 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: