Opinion

Bryan Ornelas v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Mar 21, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRYAN ORNELAS, DOCKET NUMBER

Appellant, SF-0752-22-0206-I-1

DEPARTMENT OF HOMELAND DATE: March 21, 2025

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Maielli , Imperial, California, for the appellant.

Douglas M. Weisband , Esquire, and Dennis Brady , Esquire, San Diego,

California, for the appellant.

Nelson Wong , Esquire, San Diego, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

reversed the appellant’s removal from Federal service and found that the

appellant proved that his race and national origin were motivating factors in the

removal action. For the reasons discussed below, we GRANT the agency’s

petition for review. We AFFIRM the administrative judge’s findings that the

agency proved its charge by preponderant evidence and that the appellant failed

to prove his age discrimination affirmative defense. We REVERSE the

administrative judge’s findings that the agency failed to prove nexus and that the

appellant proved that the agency was motivated by his race and national origin in

proposing his removal. We FIND instead that the appellant did not prove that the

removal decision was motivated by race and national origin discrimination, and

we VACATE the administrative judge’s but-for findings in this regard. We also

FIND that the appellant failed to prove his affirmative defense of harmful

procedural error. We further FIND that the penalty of removal is reasonable, and

we SUSTAIN the removal action.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant, a Border Patrol Agent (BPA) with the agency’s Customs and

Border Protection (CBP), was removed from Federal service for one charge of

failure to maintain a condition of employment after his driver’s license was

suspended for 1 year. Initial Appeal File (IAF), Tab 30, Initial Decision (ID)

at 2. The administrative judge held a hearing. IAF, Tab 29, Hearing Recording;

Hearing Transcript (HT). In the initial decision, the administrative judge found

that the agency proved its charge by preponderant evidence. ID at 11-12. He

found, however, that the agency failed to prove that the appellant’s removal

would promote the efficiency of the service, i.e., nexus, and he therefore reversed

the appellant’s removal. ID at 13-15. He also found that the appellant proved

that his race and national origin were motivating factors in the agency’s decision

to propose his removal but not a but-for cause of the agency’s decision to sustain

the proposed removal. ID at 16-24. The administrative judge found that the

appellant failed to prove his age discrimination affirmative defense. Id. The

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

filed a response, and the agency has filed a reply. Petition for Review (PFR) File,

Tabs 1, 3-4.

Neither party has challenged the administrative judge’s finding that the

agency proved its charge of failure to maintain a condition of employment, and

we find no basis to disturb it.

The agency proved nexus.

Pursuant to 5 U.S.C. § 7513(a), an agency may remove an employee only

for such cause as will promote the efficiency of the service. To satisfy that

requirement, the agency must show by preponderant evidence that there is a nexus

between the misconduct and the work of the agency, i.e., that the employee’s

misconduct is likely to have an adverse impact on the agency’s performance of its

functions. Brown v. Department of the Navy, 229 F.3d 1356, 1358

(Fed. Cir. 2000). In finding that the agency failed to prove nexus, the

administrative judge considered that, even without a valid driver’s license, which

was indisputably required for the appellant’s position, he was able to perform

most of the duties that he was performing prior to the license suspension.

ID at 14-15. He also found that, considering the agency’s need for BPAs, it was

in the agency’s interest to retain the appellant to perform limited duties rather

than remove him. ID at 14-15. We disagree.

The Board has consistently found that an adverse action based on an

employee’s failure to maintain a requirement of his position, such as a license,

promotes the efficiency of the service. E.g., Dieter v. Department of Veterans

Affairs, 2022 MSPB 32, ¶ 6 n.2 (declining to disturb the administrative judge’s

finding that the agency proved nexus in connection with the employee’s failure to

maintain a condition of employment); Penland v. Department of the Interior,

115 M.S.P.R. 474, ¶ 11 (2010) (“Because the appellant needed a pilot

authorization in order to perform the duties of his position, we find that the

agency has established both the reasonableness of its decision to remove the

appellant and the requisite nexus between the appellant’s loss of his authorization

and the efficiency of the service.”); Adams v. Department of the Army,

105 M.S.P.R. 50, ¶ 19 (2007) (finding that, because the appellant failed to

maintain his access to the agency’s computer system, which was a condition of

his employment, the agency established both the reasonableness of its decision to

remove the appellant and nexus), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). The

agency’s initial placement of the appellant on administrative duties following the

license suspension, which continued for 5 months until he was removed, did not

obligate it to continue accommodating him and did not preclude the agency from

taking adverse action. See Benally v. Department of the Interior, 71 M.S.P.R.

537, 540 (1996) (affirming a removal action for failure to maintain a condition of

employment and finding that the fact that the agency initially accommodated the

appellant’s inability to drive for a few months did not obligate it to continue to

accommodate him until his license was returned a year later). In the initial

decision, the administrative judge found that the Board’s decision in Benally

created a requirement that, if an agency chooses to initially accommodate an

employee who fails to maintain a condition of employment, it must show that

continued accommodation would create an undue burden before proposing

disciplinary action. ID at 15. We believe his reading of Benally is too stringent,

and we do not agree that it creates such a strict test to be universally applied

when an agency proposes to remove an employee for failing to maintain a valid

driver’s license after an initial period of accommodation. We also disagree with

the administrative judge that the 1-year term of the suspension, rather than an

indefinite suspension, requires a finding that the agency did not prove nexus.

ID at 15. The Board has previously affirmed an appellant’s removal for failure to

maintain a condition of employment in connection with a 1-year driver’s license

suspension. See Benally, 71 M.S.P.R. at 540; Shoffner v. Department of the

Interior, 9 M.S.P.R. 265 (1981). 2 Unlike the administrative judge, we are

persuaded by the agency’s argument that allowing the appellant to perform

limited duties after the loss of his license could lead to discontent among other

agents and that the appellant could not perform the full range of his job duties

without a license, including deployment during an emergency. HT at 25-26.

Under these circumstances, we find that the agency has proved that its removal

action promotes the efficiency of the service.

The appellant did not prove that the agency committed harmful procedural error.

Because the administrative judge reversed the agency’s action based on his

finding that it failed to prove nexus, he did not make a finding as to the

appellant’s affirmative defense of harmful procedural error. ID at 16. We

consider it here. To prove harmful procedural error, the appellant must establish

that the agency committed an error in the application of its procedures that is

likely to have caused the agency to reach a conclusion different from the one it

would have reached in the absence or cure of that error. 5 C.F.R. § 1201.4(r); see

Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 685 (1991).

The appellant has asserted that the agency committed harmful procedural

error in the following ways: (1) it failed to provide comparators; and (2) it failed

to follow its table of penalties. HT at 253. The appellant’s argument related to

comparators is not clear. To the extent the appellant is arguing that the agency’s

In the initial decision, the administrative judge distinguished Shoffner, finding that, in

that case, the appellant’s job was primarily related to driving and he was unable to

perform those duties after his license was revoked for 1 year. ID at 15. By contrast, he

found that the appellant could perform most of his job duties without a driver’s license.

Id. Although the Board in Shoffner, 9 M.S.P.R. at 267-68, discussed the extensive

driving that the appellant’s job required, it did so in its consideration of the penalty

analysis. We do not believe that Shoffner creates a rule requiring agencies to prove that

an employee’s primary job duties are affected by the employee’s failure to maintain a

condition of employment. In any event, consistent with Shoffner, we have considered

the effect of the 1-year license suspension on the appellant’s job duties in our

discussion of the reasonableness of the penalty.

purported failure to provide comparators in response to an information request

from the appellant’s union representative constitutes harmful error, HT at 198-99,

253, we disagree. We have considered that the agency provided information

about potential comparators before the administrative judge. IAF, Tab 25. Only

one of the potential comparators was charged with the same offense as the

appellant. Id. at 40-41. Information about this comparator was provided to the

appellant’s union representative before a decision on the proposed removal was

issued. IAF, Tab 20 at 45-51; HT at 75. The agency’s failure to provide

information about other individuals, who are not comparators, does not constitute

harmful procedural error. See Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 17

(explaining that, for purposes of a disparate penalty analysis, relevant

comparators must have committed the same or similar act of misconduct). We

also find unpersuasive the appellant’s argument that the agency committed

harmful procedural error by failing to follow its table of penalties. HT at 253.

The appellant has not provided evidence that the removal is outside the agency’s

recommended penalty range for an offense of failure to maintain a condition of

employment. We therefore find that he has failed to prove his affirmative defense

of harmful procedural error.

The appellant did not prove that the agency discriminated against him based on

race and national origin. 3

An appellant may prove discrimination by various methods, including by

circumstantial evidence. Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶¶ 23-24. Circumstantial evidence may include evidence of

suspicious timing, ambiguous statements, behavior toward other employees in a

protected group, comparator evidence demonstrating that employees similarly

situated to the appellant other than in the protected characteristic received

In the initial decision, the administrative judge found that the appellant failed to prove

his age discrimination affirmative defense. ID at 20. Neither party has challenged this

finding on review, and we find no basis to disturb it.

systematically better treatment, evidence showing that the agency’s stated reason

for its action is unworthy of belief and pretext for discrimination, or other bits

and pieces of evidence from which an inference of discrimination may be drawn.

Id., ¶ 24. In the initial decision, the administrative judge found, based on bits and

pieces of circumstantial evidence, that the appellant proved that the agency was

motivated by his race and national origin (Hispanic) in proposing his removal.

ID at 18. He found, however, that the appellant failed to prove that his race and

national origin were the but-for cause of the agency’s decision to sustain the

removal. Id. Notably, the administrative judge did not make a finding on

whether the appellant proved by preponderant evidence that his race and national

origin were motivating factors in the removal decision. We do so now.

The administrative judge noted that there was no direct evidence of

discrimination, such as statements by agency officials that reflect bias based on

race and/or national origin. ID at 18. The deciding official testified that he did

not know the appellant’s race and national origin and such characteristics did not

play a role in his decision. HT at 31-32. Moreover, the administrative judge

found that there was no evidence that the deciding official knew the appellant’s

race and national origin or that he considered these characteristics as a negative.

ID at 21. The appellant does not challenge these findings.

For the purposes of our analysis, we have considered whether the deciding

official was influenced by another official with an improper motive. See, e.g.,

Birdie C. v. Department of Agriculture, EEOC Appeal No. 2023001609, 2024 WL

862608 at *3 (Feb. 12, 2024) (“Under a cat’s paw theory, animus and

responsibility for [an] adverse action can be attributed to a supervisor who was

not the ultimate decision maker, if that supervisor intended the adverse action to

be a consequence of her discriminatory conduct.”). As the administrative judge

noted, neither party called the proposing official as a witness, and the appellant

did not introduce any evidence about his mental state. ID at 23. Additionally,

the administrative judge noted that the parties examined the Labor

Relations/Employee Relations Specialist, who gathered records and made

recommendations about discipline to the proposing official, which she said he

accepted. Id.

However, we are not persuaded by administrative judge’s determination

that circumstantial evidence supports the conclusion that the appellant’s race and

national origin were motivating factors in the proposed removal. ID at 18-21.

Importantly, the appellant has not provided evidence, or even alleged, that the

agency treated non-Hispanic employees whose licenses were suspended for 1 year

differently than him. The fact that the agency seems to lack a policy or guidance

regarding how to distinguish a 1-year suspension from a longer suspension,

ID at 19, without more, is not evidence of discrimination. The administrative

judge’s comparison of the agency’s treatment of employees who were charged

with or convicted of driving under the influence (DUI) is inapposite to the

agency’s treatment of the appellant because the appellant was not charged with

DUI. 4 In any event, the deciding official testified that employees who were

convicted of DUI were usually able to obtain a restricted driver’s license, which

enabled them to drive for work and avoid a failure to maintain a condition of

employment charge. HT at 41-42. It is undisputed that the appellant did not have

a restricted driver’s license and was not able to drive for any purpose for 1 year.

HT at 21, 41. We therefore disagree with the administrative judge that the

agency’s selection of the charge is suspicious under these circumstances.

We also disagree with the administrative judge that the agency’s treatment

of R.D. constitutes circumstantial evidence of discrimination. ID at 20-21. R.D.

lost his ability to carry a firearm, which was required for his position, after a state

court issued a restraining order against him. IAF, Tab 25 at 40. As the agency

noted in its petition for review, both the appellant and R.D. failed to maintain a

condition of employment and the agency treated them the same by proposing their

Indeed, if the agency charged the appellant with DUI, the charge would likely not be

sustained because his blood alcohol level was below the legal limit. ID at 6.

removals. PFR File, Tab 1 at 17. However, in R.D.’s case, he regained his

ability to carry a firearm before the agency made a decision on the proposed

removal because the state court rescinded the restraining order. Id. There is no

evidence that the agency controlled the resolution of the restraining order or that

it delayed issuing a decision on R.D.’s proposed removal to permit the court to

resolve the restraining order. Further, the record reflects that the appellant and

R.D. were assigned to administrative duties for a similar period of time before

disciplinary action was proposed. HT at 121, 149. We therefore discern no

meaningful difference in the agency’s treatment of the appellant and R.D.

For these reasons, we conclude that the appellant has not proven that his

race and national origin were a motivating factor in the proposed removal, and we

reverse the administrative judge’s findings in this regard. Nor has the appellant

otherwise proven that the deciding official was improperly influenced by any

alleged animus by other management officials. We further conclude that the

appellant did not prove that his race and national origin were a motivating factor

in the removal decision. See, e.g., Social Security Administration v. Levinson,

2023 MSPB 20, ¶ 29 (noting that the administrative law judge concluded that the

official responsible for the matter had no knowledge of the respondent’s equal

employment opportunity (EEO) complaint, the respondent did not give the Board

any reason to find otherwise, and he did not present any other substantive

argument or evidence about EEO reprisal being a motivating factor in the

complaint), aff’d, No. 2023-2277, 2024 WL 3579909 (Fed. Cir. July 30, 2024).

Because we find that the appellant did not prove that his race and national origin

were motivating factors in the removal decision, we need not resolve whether he

proved “but-for” causation in this regard. 5 Pridgen, 2022 MSPB 31, ¶¶ 20-22.

We also vacate the administrative judge’s but-for findings related to these claims.

The penalty of removal is reasonable.

In an adverse action appeal taken under chapter 75, the agency must prove

its charge by preponderant evidence, establish a nexus between the action and the

efficiency of the service, and establish that the penalty imposed was within the

tolerable bounds of reasonableness. Hall v. Department of Defense, 117 M.S.P.R.

687, ¶ 6 (2012). Having found that the agency proved its charge and the nexus

requirement, we next consider whether the selected penalty of removal is within

the tolerable limits of reasonableness.

In assessing the reasonableness of the penalty, the Board will consider a

nonexhaustive list of factors set forth in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981): (1) the nature and seriousness of the offense and

its relation to the employee’s duties, position, and responsibilities, including

whether the offense was intentional or technical or inadvertent, or was committed

maliciously or for gain, or was frequently repeated; (2) the employee’s job level

and type of employment, including supervisory or fiduciary role, contacts with

the public, and prominence of the position; (3) the employee’s past disciplinary

record; (4) the employee’s past work record, including length of service,

performance on the job, ability to get along with fellow coworkers, and

dependability; (5) the effect of the offense upon the employee’s ability to perform

at a satisfactory level and its effect upon supervisors’ confidence in the

The administrative judge noted in the initial decision that the appellant also raised a

claim of discrimination based on color, ID at 2, 16, but he did not make any findings in

this regard. The appellant, who was represented by counsel, did not file a cross petition

for review, and he does not otherwise raise this omission on review. See, e.g.,

Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 18 (setting forth a nonexhaustive list

of factors in determining whether an appellant waived or abandoned a previously

identified affirmative defense, including whether the appellant raised the administrative

judge’s processing of the claim in his petition for review and whether he was

represented on review). Therefore, we need not address this issue further.

employee’s ability to perform assigned duties; (6) the consistency of the penalty

with those imposed upon other employees for the same or similar offenses; (7) the

consistency of the penalty with any applicable table of penalties; (8) the notoriety

of the offense or its impact upon the reputation of the agency; (9) the clarity with

which the employee was on notice of any rules that were violated in committing

the offense, or had been warned about the conduct in question; (10) the potential

for the employee’s rehabilitation; (11) mitigating circumstances surrounding the

offense such as unusual job tensions, personality problems, mental impairment,

harassment or bad faith, malice or provocation on the part of others involved in

the matter; and (12) the adequacy and effectiveness of alternative sanctions to

deter such conduct in the future by the employee or others. Not every factor is

relevant in every case. See Chavez v. Small Business Administration ,

121 M.S.P.R. 168, ¶ 9 (2014) (finding that a deciding official does not have to

consider each of the Douglas factors in making his penalty determination).

When all of the agency’s charges are sustained, as they are here, the Board

will review the agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

the tolerable limits of reasonableness. Powell v. U.S. Postal Service,

122 M.S.P.R. 60, ¶ 12 (2014). In making this determination, the Board must give

weight to the agency’s primary discretion in maintaining employee discipline and

efficiency, recognizing that the Board’s function is not to displace management’s

responsibility but to ensure that managerial judgment has been properly

exercised. Id. The Board will modify or mitigate an agency-imposed penalty

only when it finds that the agency failed to weigh the relevant factors or the

penalty clearly exceeds the bounds of reasonableness. Id.; see Stuhlmacher v.

U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001).

In the letter sustaining the agency’s proposed removal, the deciding official

stated that he considered the nature and seriousness of the offense and how it

related to the appellant’s duties. IAF, Tab 1 at 12. He also stated that he

considered the appellant’s 13 years of service, the lack of any prior disciplinary

history, and his satisfactory performance record. Id. at 13. He concluded that the

mitigating factors did not outweigh the seriousness of the offense. Id. He also

stated that he considered reassignment to another position within CBP; however,

he determined that reassignment was not in the best interest of the agency and

that removal was the appropriate penalty. Id. At the hearing, the deciding

official testified that he considered the twelve Douglas factors and concluded that

removal was appropriate based on the seriousness of the offense and the

appellant’s inability to perform the full duties of his position without a driver’s

license. HT at 23. He also testified that he was unable to locate any positions in

the agency to which the appellant could be reassigned without a driver’s license

and that permitting the appellant to continue to perform limited duties in the BPA

position could affect employee morale. HT at 24-26.

We find that the deciding official appropriately considered the relevant

Douglas factors and that the penalty of removal is within the tolerable limits of

reasonableness. See Penland, 115 M.S.P.R. 474, ¶ 11 (finding that the penalty of

removal was reasonable for an employee’s failure to maintain a condition of

employment); Adams, 105 M.S.P.R. 50, ¶ 19 (same). The appellant has argued

that the penalty of removal is too harsh in light of testimony that the appellant

likely would not have been removed from Federal service if he had been

convicted of DUI. HT at 253. However, employees who were charged with DUI

are not appropriate comparators for purposes of a disparate penalty analysis. See

Singh, 2022 MSPB 15, ¶ 17.

Based on the foregoing, we find that the agency proved its charge of failure

to maintain a condition of employment and a nexus between the action and the

efficiency of the service, and that the selected penalty is within the tolerable

limits of reasonableness. We find that the appellant failed to prove his

affirmative defenses. The agency’s removal action is sustained.

NOTICE OF APPEAL RIGHTS 6

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 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. 7 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