Opinion

Samuel Shuttleworth v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Mar 31, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.7%

stating that eligibility for LEO retirement coverage must be strictly construed

How later courts described this case

stating that eligibility for LEO retirement coverage must be strictly construed

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SAMUEL SHUTTLEWORTH, DOCKET NUMBER

Appellant, DC-0842-22-0412-I-1

DEPARTMENT OF HOMELAND DATE: March 31, 2025

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Samuel Shuttleworth , Suffolk, Virginia, pro se.

Nicholas R. Hankey , Esquire, and Melissa Williams , Esquire,

Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member*

*The Board members voted on this decision before March 28, 2025.

FINAL ORDER

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

affirmed the agency’s decision denying his request for retroactive law

enforcement officer (LEO) retirement coverage under the Federal Employees’

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Retirement System (FERS) for his period of employment with the Federal

Protective Service (FPS). Generally, we grant petitions such as this one only in

the following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

apply the two-part, two-factor analysis for LEO retirement coverage in

accordance with Klipp v. Department of Homeland Security, 34 F.4th 1326

(Fed. Cir. 2022), we AFFIRM the initial decision.

BACKGROUND

The appellant held various law enforcement positions within FPS from

August 31, 1997, through his retirement on September 30, 2018, at age 66. Initial

Appeal File (IAF), Tab 21 at 4-5. According to the appellant, he always believed

he was entitled to LEO retirement coverage and did not learn of his ineligibility

until he received his estimated retirement annuity shortly before his retirement.

IAF, Tab 1 at 3, Tab 7 at 53, 63. He obtained a final agency decision on the issue

on May 2, 2022, which denied his claim for LEO retirement coverage. IAF,

Tab 1 at 6. This appeal followed. IAF, Tab 1.

After a hearing, the administrative judge issued an initial decision

affirming the agency’s decision. IAF, Tab 31, Initial Decision (ID). She

considered the appellant’s position descriptions and his actual duties and

determined that the reason for the appellant’s positions was the protection of

Federal property rather than the investigation, apprehension, or detention of

criminal suspects. ID at 10-23. She concluded that the appellant did not qualify

for LEO retirement coverage. ID at 23.

The appellant has filed a petition for review, re-raising several of his

arguments below and arguing prejudicial error in the administrative judge’s

decision to continue the August 1, 2022 hearing to August 22, 2022. Petition for

Review (PFR) File, Tab 1 at 2-15. The agency has responded to the petition for

review, and the appellant has submitted an untimely reply. 2 PFR File, Tabs 4-7.

DISCUSSION OF ARGUMENTS ON REVIEW

The LEO system is a special retirement system established by Congress for

Federal employees in certain positions to retire at an unusually early age.

Watson v. Department of the Navy, 262 F.3d 1292, 1296 (Fed. Cir. 2001). Under

5 U.S.C. § 8412(d), an employee covered under FERS may retire at age 50 after

completing 20 years of LEO service, or at any age after completing 25 years of

LEO service. A qualifying employee also receives a larger annuity than ordinary

civil service employees but is subject to larger salary deductions during his

employment. Watson, 262 F.3d at 1296. Because of this additional cost to the

Federal Government, eligibility for LEO retirement coverage must be strictly

The appellant moved for an extension of time to file a reply to the agency’s response

66 days after he allegedly received the agency’s response in the mail. PFR File, Tab 5

at 2. His motion was thus untimely by 56 days. See 5 C.F.R. § 1201.114(e), (f). He

subsequently submitted a substantive reply and has argued good cause for his untimely

submissions: he assumed that the agency did not perfect its response after it was

rejected by the Board due to length limitations because he received only one submission

by the agency in the mail. PFR File, Tab 5 at 2, Tab 7 at 3. We credit the appellant’s

explanation; however, we do not find that he exercised due diligence or ordinary

prudence under the circumstances. Therefore, we find his motion and substantive reply

to be untimely without good cause shown. See Alonzo v. Department of the Air Force,

4 M.S.P.R. 180, 184 (1980); 5 C.F.R. § 1201.114(g). We have reviewed his reply

nonetheless, and it does not warrant a different outcome. PFR File, Tab 7 at 6-14.

construed. Id. at 1298. As with all applications for retirement benefits, an

applicant seeking LEO retirement coverage bears the burden of proving

entitlement by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2).

For purposes of FERS retirement coverage, there are two types of LEO

positions—rigorous (“primary”) and secondary. See 5 C.F.R. § 842.803(a)-(b);

see also Klipp, 34 F.4th at 1329. Primary law enforcement positions earning

credit are those in which an employee’s primary duties are “the investigation,

apprehension, or detention of individuals suspected or convicted of offenses

against the criminal laws of the United States, or [ ] the protection of officials of

the United States against threats to personal safety,” and the duties are

“sufficiently rigorous that employment opportunities should be limited to young

and physically vigorous individuals.” Id.; 5 U.S.C. § 8401(17)(A)(i)-(ii); see also

5 C.F.R. § 842.802. 3 Employees whose primary duties involve “maintaining

order, protecting life and property, guarding against or inspecting for violations

of law, or investigating persons other than those who are suspected or convicted

of offenses against the criminal laws of the United States” do not hold a primary

LEO position. See Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802. Service in a

secondary LEO position is covered if the employee moves directly from a

rigorous position to a secondary position, the employee has completed 3 years of

service in a rigorous position, and the employee has been continuously employed

in a secondary position without a break in service exceeding 3 days. 5 U.S.C.

§ 8401(17)(C); 5 C.F.R. § 842.803(b). Consequently, if the employee never held

a rigorous, or primary, LEO position, he cannot meet the requirements for

secondary coverage either. 5 C.F.R. § 842.803(a)-(b).

“Primary duties” means those duties of a position that are paramount in influence or

weight; that is, constitute the basic reasons for the existence of the position; occupy a

substantial portion of the individual’s working time over a typical work cycle; and are

assigned on a regular and recurring basis . 5 C.F.R. § 842.802. In general, if an

employee spends an average of at least 50% of his time performing a duty or group of

duties, they are his primary duties. Id.

During the pendency of the petition for review, the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) issued a precedential decision that we

find to be instructive on the issues in this appeal. See Klipp, 34 F.4th at 1332-33.

The Federal Circuit explained that the Board must first examine the position

description (PD) to determine whether the position qualifies as a rigorous LEO

position, then, if the position fails to qualify, afford the appellant the opportunity

to show that the actual duties of his position are sufficient to establish LEO

status. Id. It emphasized that these findings must be independent. Id. at 1333.

Second, in assessing an appellant’s actual duties, the Federal Circuit explained

that “physical vigorousness” is the first and most important factor, and that the

“hazardousness” of the position need only be considered if the position is

sufficiently vigorous. Id. at 1332.

The Federal Circuit reiterated the subfactors it provided in Crowley v.

United States, 398 F.3d 1329, 1339 (Fed. Cir. 2005): “physical vigorousness” is

assessed by evaluating (in order of importance) whether the position has

(1) strenuous physical fitness requirements, (2) age requirements—such as a

mandatory retirement age or a maximum entry age, or (3) a requirement that the

appellant be on call 24 hours a day. See Klipp, 34 F.4th at 1332. Hazardousness

depends on—in order of importance—whether the position (1) requires frequent

and consistent contact with criminal suspects; or (2) authorizes the appellant to

carry a firearm. Id.

In this case, the administrative judge’s analysis was not fully consistent

with the Federal Circuit’s decision in Klipp. ID at 10-23. Nevertheless, because

the record is fully developed on the relevant issues, we will apply the analysis

outlined by the Federal Circuit. In making our findings, we have fully considered

the appellant’s arguments in his petition for review. PFR File, Tab 1 at 2-15.

The appellant’s position descriptions do not describe a rigorous LEO position.

The appellant held four different positions within FPS: (1) Police Officer,

from August 31, 1997, to June 6, 1998; (2) Supervisory Police Officer, from

June 7, 1998, to February 9, 2002; (3) Physical Security Specialist (Law

Enforcement Security Officer (LESO)), referred to as “Inspector,” from

February 10, 2002, to July 10, 2004, and approximately June 2015 to

September 30, 2018; and (4) Physical Security Specialist (LESO), referred to as

“Canine Handler,” from July 11, 2004 to approximately June 2015. IAF, Tab 21

at 4-5. We first examine whether, according to the position descriptions, the

primary duties of these positions were rigorous LEO duties. See Klipp, 34 F.4th

at 1333; see also 5 U.S.C. § 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802.

In the PD submitted by the appellant for his GS-8 Police Officer position,

PC5-B330, the first duty described is “law enforcement work in the protection of

life, property, and the rights of individual citizens . . . on Federal property.” IAF,

Tab 8 at 44-45. The PD, when read as a whole, reflects that the basic reason for

the existence of the position is to “patrol” an assigned area. IAF, Tab 8 at 45-47.

The Office of Personnel Management (OPM) regulation at 5 C.F.R. § 842.802

states that the definition of law enforcement officer does not include an employee

whose primary duties involve maintaining order, protecting life and property,

guarding against or inspecting for violations of law, or investigating persons

other than those who are suspected or convicted of offenses against the criminal

laws of the United States. Hence, this type of work is specifically designated by

the OPM regulation to be non-LEO work. Id. at 45-47.

The PD also indicates that the incumbent “initiates and conducts

investigations that extend more than one shift beyond the normal patrol shift on a

regular and recurring basis,” “is involved in the interrogation of suspects,” and

“identifies and arrests violators for crimes.” Id. at 45-46. We note that these

duties would constitute LEO duties if the offenses were against the “criminal laws

of the United States.” 4 See 5 C.F.R. § 842.802. However, beyond the statement

Crimes that a patrol officer might respond to, such as theft, vandalism, assault,

disorderly conduct, and threats against Federal employees, could be classified as

offenses against the criminal laws of the United States. See Lott v. General Services

Administration, 84 M.S.P.R. 324, ¶ 18 nn.11-15 (1999).

that investigations are conducted on a “regular and continuing basis,” the PD does

not contain any other indication that these LEO duties are “primary duties,” such

as a percentage of time spent on these duties. Id.; see 5 U.S.C.

§ 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802. Regarding rigorousness, the PD states

that the incumbent “must have the physical ability to safely operate motor

vehicles on public highways”; however, the first three pages of the PD—the only

portion supplied by the appellant and available for review—contain no other

mention of physical fitness requirements. 5 IAF, Tab 8 at 45-47. The available

pages also do not mention a maximum entry or retirement age. Id. Accordingly,

we find that the Police Officer position fails to qualify for LEO status based on

the available official documentation of the position.

The PD for the appellant’s GS-10 Supervisory Police Officer Position,

PD FM2490, lists approximately nine “major duties,” the majority of which

involve the assignment of work, review of work, and other managerial duties that

appear to be mostly sedentary. IAF, Tab 8 at 36-38. Although the last duty listed

under “major duties” states that the incumbent “may be assigned” other duties,

“including all police functions and responsibilities associated with the Police

Officer (FPO) position,” it is evident that the basic reason for the existence of the

position is to supervise such positions. Id. at 38. Moreover, as with the Police

Officer PD, it appears that the policing duties involve protecting life and property

and, therefore, are non-LEO duties. Id. at 37-38; see 5 C.F.R. § 842.802.

Furthermore, the PD states vaguely that the employee must meet “basic training

and in service training requirements and medical standards established” but does

not specify physical or age requirements. Id. at 40. We conclude that this PD

also does not describe a primary, rigorous LEO position.

The agency reports that this PD was submitted by the appellant to the agency as part

of his LEO retirement claim and that the agency was unable to locate the full PD, which

was over 20 years old. IAF, Tab 7 at 14 n.2, 38, Tab 8 at 45-47. The parties stipulated

that this PD applies. IAF, Tab 21 at 4.

Regarding the appellant’s “Inspector” position, the appellant held this

position at the GS-11 and GS-12 grade levels. 6 IAF, Tab 7 at 142-46, Tab 8

at 31-34, Tab 21 at 5. The PDs at both grade levels describe a variety of duties

related to the physical security of government-owned and -leased facilities

including conducting surveys, assessments, and inspections of worksites. IAF,

Tab 7 at 142-43, Tab 8 at 31-32. Based on a reading of the PDs as a whole, we

find that the basic reason for the position is “primary responsibility for the

physical security program” of the assigned building(s) and not the performance of

LEO duties. IAF, Tab 7 at 142, Tab 8 at 31; see 5 C.F.R. § 842.802.

The PDs state that the incumbent also performs duties as a police

officer/law enforcement official and lists a mix of LEO and non-LEO duties

under the description of “law enforcement work.” 7 IAF, Tab 7 at 143, Tab 8

at 32. The GS-12 PD further specifies that the law enforcement duties occur on a

“regular and occurring basis.” IAF, Tab 7 at 143. However, we do not find that

the LEO duties are primary based on this language alone. Regarding

rigorousness, the PDs state that the work “requires moderate to arduous physical

exertion in exercising police authorities such as that required to subdue, disarm

and arrest violent or potentially violent persons suspected of crimes. There may

also be exposure to occasional long periods of overtime, shift rotation and

participation in surveillance and undercover operations.” IAF, Tab 7 at 145,

Tab 8 at 34. However, the section titled, “Work Environment,” states that the

work is performed primarily in an office or classroom setting. IAF, Tab 7 at 146,

The appellant re-raises an argument on review that FPS intentionally misclassified him

in the Security Administration Series, GS-0080, for the purpose of denying him LEO

coverage. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 61. As noted by the administrative

judge, the issue of the proper classification of a position is generally not within the

Board’s jurisdiction. ID at 9-10; see Pierce v. Merit Systems Protection Board,

242 F.3d 1373, 1375-76 (Fed. Cir. 2001). Thus, we will not consider this issue.

For example, “the protection of life, property and the rights of individual citizens” is

not an LEO duty; however, arresting offenders could be an LEO duty. IAF, Tab 7

at 143, Tab 8 at 32; see Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802.

Tab 8 at 34. Thus, we conclude that, although these PDs reflect that the position

involves some LEO duties that are physically demanding, they do not reflect that

they are the “primary duties” of the position.

Lastly, the PD for the appellant’s Canine Handler position states that, “in

conjunction with law enforcement and security duties, incumbent of this position

also spends a significant portion of time (50%) working as a member of an

Explosive Detection Dog (EDD) team (handler and canine), searching for

explosive devices.” IAF, Tab 7 at 135. Thus, the PD clearly describes at least

50% non-LEO duties because searching for explosive devices is not an LEO duty.

Id.; see Koenig v. Department of the Navy, 91 M.S.P.R. 1, ¶ 14 (2001), aff’d,

315 F.3d 1378 (Fed. Cir. 2003). As with the Inspector PD, the “law enforcement

work” described is a mix of LEO and non-LEO duties, and the same physical

demands as the Inspector PD are listed. 8 IAF, Tab 7 at 136-38. However, as with

the Inspector PD, most of the PD is devoted to a description of security duties,

and the PD also states that the work is “performed primarily in an office or

classroom setting.” Id. at 136-39. We conclude that any rigorous LEO duties

performed make up only a portion (less than 50%) of the duties according to the

PD and thus are not “primary duties.” See 5 C.F.R. § 842.802.

Accordingly, based on the position description evidence alone, we do not

find that any of the four positions held by the appellant during his tenure qualify

for LEO coverage.

The appellant has not established entitlement to LEO coverage based on the

actual duties of his positions.

Consistent with our instruction by the Federal Circuit in Klipp, we turn

next to whether the appellant is entitled to LEO retirement coverage based solely

on the actual duties of these positions. See Klipp, 34 F.4th at 1333. Much of the

The Canine Handler PD further requires the ability to lift the weight of the canine,

typically 60 pounds, and carry the canine for approximately 25 feet. IAF, Tab 7 at 138.

Because this physical requirement is related to a non-LEO duty, i.e., explosives

detection, it is not evidence of a rigorous LEO duty.

initial decision as well as the testimony at the hearing was devoted to an analysis

of the appellant’s actual duties. ID at 10-23; IAF, Tab 25, August 1, 2022

Hearing Recording (HR-1); IAF, Tab 27, August 22, 2022 Hearing Recording

(HR-2). We find no error in the administrative judge’s factual findings regarding

the appellant’s actual duties. ID at 10-23. Nevertheless, according to the Federal

Circuit in Klipp, the questions of vigorousness and hazardousness should be

separately discussed. Klipp, 34 F.4th at 1333. The factors relevant to

vigorousness are—in order of importance—whether the position has (1) strenuous

physical fitness requirements, (2) age requirements—such as a mandatory

retirement age or a maximum entry age, and (3) a requirement that an employee

be on call 24-hours a day. Id. at 1332.

The appellant does not dispute the administrative judge’s factual findings

that there were no continued physical fitness requirements in any of his positions.

PFR File, Tab 1 at 7; ID at 10, 19. He argues, however, that this factor should be

irrelevant to the analysis of LEO coverage because officers at other law

enforcement agencies within DHS also do not have recurrent physical fitness

testing but receive LEO coverage. PFR File, Tab 1 at 7-8. Even if the factual

basis for the appellant’s argument is true, his argument is unavailing. Congress,

at 5 U.S.C. § 8401(17)(A)(ii), has restricted LEO retirement coverage to

“rigorous” positions, and we are bound by our reviewing court’s instruction to

consider strenuous physical fitness requirements as a factor. See Klipp, 34 F.4th

at 1332; Crowley, 398 F.3d at 1339; see also Watson, 262 F.3d at 1298 (stating

that eligibility for LEO retirement coverage must be strictly construed). In other

words, the appellant’s argument that other officers are improperly afforded LEO

coverage does not aid him in establishing his own entitlement under the law. We

find that he has not established this first—and most important—factor relevant to

physical vigorousness. Klipp, 34 F.4th at 1333.

Turning to the second factor relevant to physical vigorousness, i.e., age

requirements, the appellant did not present any evidence before the administrative

judge that there was a maximum age for entry or early mandatory retirement age

for any of his positions. In fact, he expressly denied on cross-examination that

there were such requirements. HR-1. For the first time on review, he argues that

he would have been exempt from a maximum entry age requirement because of

his veteran’s preference, PFR File, Tab 1 at 8-9, and he presents new evidence in

the form of DHS policies regarding maximum entry age requirements for certain

DHS positions including Customs and Border Protection Officers, Firefighters,

and Law Enforcement Officer positions, id. at 16-19. 9 We decline to consider

this new argument and evidence presented for the first time on review because the

appellant has not shown that it was unavailable before the record below. See

Chin v. Department of Defense, 2022 MSPB 34, ¶ 8; Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 34 n.10.

Regarding the third—and least important—factor related to the

vigorousness of the actual duties of a position, the appellant reasserts on review

that he was required to be on call 24 hours a day during at least a portion of his

career. 10 PFR File, Tab 1 at 10-11; IAF, Tab 19 at 8; see Klipp, 34 F.4th at 1332.

More specifically, he argues that the “Home-to-Work” program, which allowed

him to take home his police vehicle, required that he document his “call-outs” in

a monthly report. PFR File, Tab 1 at 11; IAF Tab 19 at 8. He asserts that he

documented approximately 30 callouts between late 2014 and early 2018, when

he held the position of Canine Handler. PFR File, Tab 1 at 11; IAF Tab 19 at 8.

In finding no on-call requirement, the administrative judge appeared to credit the

testimonies of the Regional Director for FPS Region 3 and the FPS Branch Chief

for Canine Operations. ID at 12, 19. We find the testimony of these witnesses

The agency contends that these policies did not apply to the positions held by the

appellant. PFR File, Tab 4 at 26-27.

The administrative judge stated that it was undisputed that there were no on-call work

requirements, ID at 21, which is not entirely consistent with the appellant’s pleadings or

arguments furthered on cross-examination, IAF, Tab 19 at 8; HR-2 (cross-examination

of the FPS Branch Chief for Canine Operations).

that the Home-to-Work vehicle program was voluntary, and that participants were

not restricted to particular locations or subject to disciplinary action for failure to

respond to calls from a dispatcher, to be persuasive evidence that the appellant

was not required by the obligations of his position to be on call 24 hours a day.

HR-2 (testimony of the Regional Director for FPS Region 3; testimony of the FPS

Branch Chief for Canine Operations).

The appellant attempts to impeach the testimony of these witnesses by

submitting, for the first time on review, documentation of the Home-to-Work

Transportation Program directive. PFR File, Tab 1 at 14, 20-28. This directive

states, in pertinent part, that the GS-0080, Certified Federal Law Enforcement

Security Officers / Inspectors “are required to provide a 24 hour response.” Id.

at 25. Again, the Board generally will not consider evidence submitted for the

first time with a petition for review absent a showing that it was unavailable

before the close of the record below despite the party’s due diligence, and we find

no such showing here. See Chin v. Department of Defense, 2022 MSPB 34, ¶ 8.

In addition, the Board will not grant a petition for review absent a showing that it

is of sufficient weight to warrant an outcome different from that of the initial

decision. See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15. Here, even

if the appellant proved a 24-hour on-call requirement, satisfaction of only the

24-hour on-call requirement will not satisfy the physical vigorousness factor. See

Crowley, 398 F.3d at 1339 n.8. This new evidence, therefore, does not warrant an

outcome different from that of the initial decision.

After considering the three subfactors, we conclude that the actual duties of

the appellant’s positions were not sufficiently vigorous to establish LEO status.

As hazardousness need only be addressed if the position is sufficiently vigorous,

we have not considered whether the appellant’s actual duties required frequent

and consistent contact with criminal suspects, as he argues on review, in our

decision in this case. PFR File, Tab 1 at 10-14; see Klipp, 34 F.4th at 1333

(citing Crowley, 398 F.3d at 1339).

Finally, the appellant alleges that the administrative judge improperly

continued the August 1, 2022 hearing to August 22, 2022, prejudicing him by

allowing the agency additional time to prepare. PFR File, Tab 1 at 3-4; IAF,

Tabs 22-23; HR-1; HR-2. The prehearing conference order reflects that the

hearing was scheduled to begin on August 1, 2022, and would continue on

August 22, 2022, and that the appellant, bearing the burden of proof in this case,

would present his case-in-chief first. IAF, Tab 21 at 8-9. The appellant did not

object to the hearing schedule at that time. The record further reflects that the

administrative judge permitted the appellant to use the full day on August 1, 2022

to present his case-in-chief, which necessitated the scheduled continuance for the

agency’s presentation of its witness. IAF, Tab 25, Tab 26 at 2-3. Administrative

judges have broad authority to govern the proceedings before them. 5 C.F.R.

§ 1201.41(b); see Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 12

(2015). Under the circumstances, we find that the appellant has not shown that

the administrative judge abused her discretion regarding the scheduling set forth

in the prehearing conference order.

The initial decision is affirmed as modified, consistent with the Federal

Circuit’s analysis in Klipp, 34 F.4th at 1332-33.

NOTICE OF APPEAL RIGHTS 11

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

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

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

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.

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).

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. 12 The court of appeals must receive your

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.

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