Opinion

Nicolas J. Rike v. Department of the Navy

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Status: Unpublished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

finding that the Board may overturn an administrative judge’s demeanor-based credibility findings only when it has “sufficiently sound” reasons for doing so

How later courts described this case

finding that the Board may overturn an administrative judge’s demeanor-based credibility findings only when it has “sufficiently sound” reasons for doing so

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NICOLAS JAMES RIKE, DOCKET NUMBER

Appellant, PH-0752-23-0075-I-1

DEPARTMENT OF THE NAVY, DATE: March 31, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Renee Toney , Esquire, Williamsville, New York, for the appellant.

Heather C. Tenney , Esquire, Albany, New York, for the appellant.

Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.

Scott W. Flood , Esquire, and Alison McKay , Esquire, Portsmouth, New

Hampshire, for the agency.

Cindee Carter , Kittery, Maine, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member*

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

mitigated the appellant’s removal to a 30-day suspension without pay. 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 and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

Prior to his removal, the appellant was a GS-12 Supply Management

Specialist in Code 500 at the agency’s Portsmouth Naval Shipyard in Kittery,

Maine. Initial Appeal File (IAF), Tab 7 at 4, 54. On March 23, 2022, he

experienced a mild heart attack while on duty, purportedly due to stress, and went

to the emergency room. Id. at 69. The appellant returned to duty on March 29,

2022. Id. That afternoon, just before the end of his shift, the appellant met with

his first-line supervisor, M.S., to muster out, provide the requested leave slips for

his absences following his medical emergency, and ask his supervisor to sign to

acknowledge receipt of a Federal Employees Notice of Traumatic Injury and

Claim for Continuation of Pay/Compensation Form CA -1 (CA-1). Id. at 69-70,

106. During this encounter, the appellant and M.S. had a confrontation. Id.

at 70-74, 106-08.

On April 18, 2022, the agency proposed removing the appellant for

inappropriate behavior related to the confrontation on March 29. Id. at 85-91. In

support of its charge, the agency alleged that in response to M.S.’s assertion that

he was uncomfortable signing the CA-1 before speaking with someone about it

due to his lack of familiarity, the appellant yelled and cursed at him, called him a

“fucking liar” and a “[f]ucking [m]other [f]ucker,” and demanded that he sign the

CA-1. Id. at 85-86. On July 5, 2022, the agency issued a decision letter

sustaining the inappropriate behavior charged and removed the appellant effective

July 9, 2022. Id. at 55-60. On July 14, 2022, the appellant amended a pending

formal equal employment opportunity (EEO) complaint to include his removal.

Id. at 22-28. On November 7, 2022, after investigation, the appellant received a

Final Agency Decision (FAD) that found that he did not prove that he was

subjected to discrimination based on disability or reprisal. Id. at 30-49.

Subsequently, the appellant filed the instant mixed -case appeal. IAF, Tab 1; see

5 C.F.R. § 1201.154(b)(1).

After holding the requested hearing, IAF, Tab 15 at 4, Tabs 51, 54-55,

Hearing Recording (HR), the administrative judge issued an initial decision, IAF,

Tab 61, Initial Decision (ID). Therein, he sustained the inappropriate behavior

charge and found nexus between the charge and the efficiency of the service but

mitigated the removal penalty to a 30-day unpaid suspension as the maximum

reasonable penalty. ID at 10-17. The administrative judge also concluded that

the appellant failed to establish his affirmative defenses of discrimination based

on his disability and his prior EEO activity. ID at 15-17.

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

that the administrative judge misapplied the law to the facts and abused his

discretion by mitigating the agency’s chosen penalty. 2 Petition for Review (PFR)

File, Tab 1 at 9-35. The appellant has responded in opposition to the agency’s

petition for review. PFR File, Tab 4. The agency has filed a reply to the

response. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly held that the agency proved its charge and

established nexus and that the appellant failed to prove his affirmative defenses.

Generally, in an adverse action appeal, an agency must prove its charge by

a preponderance of the evidence, establish a nexus between the action and the

efficiency of the service, and establish that the penalty it imposed is within the

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

687, ¶ 6 (2012). Here, the administrative judge found that the agency proved its

charge of inappropriate behavior by preponderant evidence and established a

nexus between the action and the efficiency of the service. ID at 10-15. The

administrative judge also found that the appellant failed to prove his affirmative

defenses, reasoning that the limited evidence and testimony did not suggest any

retaliatory or discriminatory animus on the part of the relevant agency officials.

ID at 15-17. The parties do not challenge these findings on review, and we

discern no reason to disturb them. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an

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

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same);

Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that

With its petition for review, the agency submitted a certification of its compliance

with the interim relief order and provided evidence demonstrating that it has complied

with the administrative judge’s interim relief order. Petition for Review (PFR) File,

Tab 2 at 4-10; see 5 C.F.R. § 1201.116(a). The appellant does not challenge the

agency’s certification on review.

there is sufficient nexus between an employee’s conduct and the efficiency of the

service when the conduct occurred in part at work).

Therefore, the only issue that remains on review is whether the penalty of

removal was reasonable based on the single charge of inappropriate behavior. On

review, the agency argues that it was and that the administrative judge abused his

discretion by failing to give deference to its penalty determination when he

mitigated its chosen penalty by reweighing the Douglas factors and substituting

his own judgment for that of the agency. PFR File, Tab 1 at 9-10, 31-33; see

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). Upon

considering the agency’s arguments on review, as discussed below, we are not

convinced that the administrative judge erred in mitigating the removal to a

30-day suspension.

The administrative judge correctly found that the agency failed to properly

consider the relevant Douglas factors and he properly exercised his discretion to

reweigh the factors and mitigate the agency’s penalty.

Where, as here, the agency’s charge has been sustained, the Board will

review an agency-imposed penalty only to determine if the agency considered all

of the relevant factors and exercised management discretion within tolerable

limits of reasonableness. Chin v. Department of Defense, 2022 MSPB 34, ¶ 24;

Douglas, 5 M.S.P.R. at 306 (articulating a nonexhaustive list of factors relevant

to a penalty determination in an adverse action). In determining whether the

selected penalty is reasonable, the Board gives due weight to the agency’s

discretion in exercising its managerial function of maintaining employee

discipline and efficiency. Chin, 2022 MSPB 34, ¶ 24 (citing Stuhlmacher v. U.S.

Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001)). The Board will modify a penalty

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

penalty the agency imposed clearly exceeded the bounds of reasonableness. Id.

However, if the deciding official failed to appropriately consider the relevant

factors, the Board need not defer to the agency’s penalty determination. Id.

In mitigating the agency’s chosen penalty, the administrative judge

reviewed the proposing official’s Douglas factor analysis, with which the

deciding official concurred, and concluded that the agency failed to properly

consider all of the evidence in its analysis. ID at 19-22. The agency challenges

this finding on review, arguing that the administrative judge erroneously relied on

the proposing official’s Douglas factors analysis. PFR File, Tab 1 at 31-33.

Specifically, it contends that “the record clearly establishes that the [deciding

official] weighed the relevant Douglas factors and specifically considered [the]

[a]ppellant’s reported job tensions and stress, his allegation that his supervisor

provoked him by initiating the swearing and shouting, as well as his prior

successful performance and ten-year tenure as mitigating factors.” PFR File,

Tab 1 at 32. The agency cites its decision letter and the deciding official’s

testimony to support its contention. IAF, Tab 7 at 55-59, Tab 51, HR (testimony

of deciding official). We are not persuaded.

In the initial decision, the administrative judge identified the relevant

information in determining that the agency failed to properly consider the

relevant mitigating factors in conducting its analysis. ID at 19-22. For example,

in its decision letter, the deciding official stated that “[he] considered and

concur[red] with all of the Douglas factors outlined in [the proposed removal

letter].” IAF, Tab 7 at 59. The problem with this is that, as the administrative

judge correctly acknowledged, the proposing official believed that there were no

mitigating factors such as unusual job tensions, harassment, or provocation

surrounding the charged offense. ID at 20; IAF, Tab 7 at 89. The evidence

indicating that such factors existed belies such a conclusion. First, the appellant

named M.S. a responsible management official for his alleged harassment in the

underlying EEO complaint. IAF, Tab 7 at 23. Next, the argument at issue stems

from the appellant’s attempt to get M.S.’s signature on the CA -1 after having a

purported stress-induced heart attack while on duty. IAF, Tab 7 at 69, 85-86.

And the appellant attributes that stress, in part, to the alleged bullying and

harassment he faced from M.S. and other management officials. Id. at 67-75;

IAF, Tab 58, HR (testimony of the appellant). Then, notably, M.S. conceded that

he directed the appellant to return to his office after the appellant tried to leave

before things really escalated. IAF, Tab 7 at 70; Tab 51, HR (testimony of M.S.).

The deciding official also concurred with the proposing official’s

conclusion that the appellant’s conduct outweighed his 10 -year tenure and

satisfactory performance, particularly in light of his prior discipline. 3 IAF, Tab 7

at 59-60, 87-88, Tab 51, HR (testimony of deciding official). The administrative

judge found this suggestive evidence that the agency did not consider the

appellant’s work record as a mitigating factor. ID at 20, 22. We agree with the

administrative judge. In concurring with the proposing official’s analysis, the

deciding official assigned more weight to the appellant’s prior unrelated

discipline. IAF, Tab 7 at 59-60, 87-88, 109-12. Although the Board generally

will not discount a prior disciplinary record because it is for an unrelated offense,

if the nature of the prior misconduct is sufficiently different from the charges in

the proposal at issue, the difference may significantly diminish the weight of that

prior discipline in determining a proper penalty. See Skates v. Department of the

Army, 69 M.S.P.R. 366, 369 (1996); Lewis v. Department of the Air Force,

51 M.S.P.R. 475, 484 (1991). As such, we are unconvinced that the appellant’s

attendance-related discipline, which is sufficiently different from the charged

inappropriate behavior, outweighs his 10 years of service, which was free from

the discipline at issue here.

Further, despite the agency’s argument to the contrary, the deciding official

testified that he considered that the factors mentioned above gave context to the

dispute but did not excuse the appellant’s behavior. IAF, Tab 51, HR (testimony

of deciding official). Given these facts, it seems improbable that the deciding

The record reflects that the appellant received his first disciplinary action, a letter of

reprimand, on August 19, 2021, for an unauthorized absence, lack of candor, and failure

to follow instructions. IAF, Tab 7 at 111-12. He also received a 14 -day suspension on

January 24, 2022, for failure to comply with timekeeping procedures. Id. at 87, 109-10.

official adequately considered the relevant mitigating factors. Therefore, we find

that the administrative judge properly exercised his discretion in reducing the

deference to the agency’s penalty determination and reweighing the relevant

mitigating factors. ID at 19-22.

The administrative judge did not abuse his discretion by concluding that the

maximum reasonable penalty was a 30 - day suspension.

The agency argues on review that even if the administrative judge correctly

determined its penalty determination was not entitled to deference, removal is

within the tolerable limits of reasonableness. PFR File, Tab 1 at 33-35.

Specifically, the agency contends that removal is reasonable because it is

consistent with its table of penalties for a third disciplinary action and is

comparable to personnel actions taken at the shipyard. PFR File, Tab 1 at 33-35.

This argument is unavailing.

In the initial decision, the administrative judge determined that the removal

penalty exceeded the bounds of reasonableness. ID at 19-22. He explained that

the appellant’s conduct was serious but concluded that it did not warrant removal

under the circumstances. ID at 19. In so finding, the administrative judge relied

on the documentary evidence and witness testimony and made credibility findings

regarding the March 29, 2022 confrontation and the surrounding circumstances

under Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 8,

10-15, 18-19. He considered that in most cases where the Board upheld removal

based on a single charge of disrespectful conduct (or similarly titled misconduct),

the misconduct involved either multiple specifications, abusive or obscene

language, and/or physical action. ID at 19 (citing Suggs v. Department of

Veterans Affairs, 113 M.S.P.R. 671, ¶ 13 (2010)). He recognized that the charged

misconduct involved obscene/abusive language, however he found that both the

appellant and M.S. were “shouting and using inappropriate language,” and such

behavior was seemingly common at the shipyard. ID at 15, 18-21. He also

considered that the disciplinary actions of the proffered comparators involved

repeated instances of inappropriate behavior rather than a single incident and

noted that only one of the four faced removal. ID at 20-21; IAF, Tab 7 at 44-62.

He also found “some dubious analysis” in setting the penalty, reasoning that there

are several disciplinary actions between a 14 -day suspension and removal. Id.

at 20 n.22. Moreover, he took into account the agency’s failure to properly weigh

the mitigating circumstances as explained above. ID at 19-22.

Like the administrative judge, we acknowledge the seriousness of the

charge against the appellant and do not minimize its gravity. ID at 19; see Suggs,

113 M.S.P.R. 671, ¶ 8 (2010) (recognizing that disrespectful conduct is a serious

offense, and agencies are entitled to expect employees to conduct themselves in

accordance with accepted standards), aff’d, 415 F. App’x 240 (Fed. Cir. 2011).

Nonetheless, even though the administrative judge sustained the agency’s single

charge and specification of inappropriate behavior, several mitigating factors

were present that justified mitigation. ID at 15, 19-22; see Suggs, 113 M.S.P.R.

671, ¶¶ 12-15 (finding that the presence of significant mitigating factors justified

reducing the penalty of removal for one charge of disrespectful conduct to a

30-day suspension). Thus, we discern no basis to overturn the administrative

judge’s well-reasoned conclusion that a 30-day suspension is the maximum

reasonable penalty based on the facts of this case. See Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board may

overturn an administrative judge’s demeanor-based credibility findings only when

it has “sufficiently sound” reasons for doing so); Crosby, 74 M.S.P.R. at 106

(1997); Broughton, 33 M.S.P.R. at 359 (same).

Accordingly, we deny the petition for review and affirm the initial

decision, which sustained the charge of inappropriate behavior but mitigated the

removal penalty to a 30-day suspension.

ORDER

We ORDER the agency to cancel the removal action and substitute in its

place a 30-day suspension effective July 9, 2022. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

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

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

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

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

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

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

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

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

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

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

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

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

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

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

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

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

For agencies whose payroll is administered by either the National Finance

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

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

necessary to process payments and adjustments resulting from a Board decision

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

documentation necessary to process payments and adjustments resulting from the

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

made within the 60-day period set forth above.

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 forth 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

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE 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

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 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).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following