Opinion

Katherine Bunting v. Department of Justice

Court: Merit Systems Protection Board
Filed: Nov 20, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 37.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHERINE BUNTING, DOCKET NUMBER

Appellant, PH-0752-23-0085-I-1

DEPARTMENT OF JUSTICE, DATE: November 20, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peter M. Whelan , Esquire, Washington, D.C., for the appellant.

Luke Archer , Springfield, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

made the following findings: (1) the agency proved the unacceptable

performance charge by substantial evidence; (2) the appellant proved her failure

to accommodate disability discrimination claim; (3) she did not prove her claim

of retaliation for equal employment opportunity (EEO) activity; and (4) the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

removal action should be reversed. 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. We MODIFY the initial

decision to supplement the administrative judge’s analysis of the appellant’s

failure to accommodate claim and to explicitly find that the appellant is a

qualified individual with a disability. Except as expressly MODIFIED in this

regard, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has not filed a cross petition for review and has not

challenged the administrative judge’s conclusions that the agency proved by

substantial evidence the elements of an unacceptable performance charge and that

she did not prove her claim of retaliation for prior EEO activity. We affirm the

initial decision in this regard. The only issue before the Board is the

administrative judge’s adjudication of the appellant’s failure to accommodate

disability discrimination claim. 2 Petition for Review (PFR) File, Tab 1 at 18-38.

The Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act. Haas v. Department of Homeland Security,

2022 MSPB 36, ¶ 28. The Rehabilitation Act has incorporated the standards of

the Americans with Disabilities Act, as amended by the Americans with

Disabilities Amendments Act. Id. Therefore, the Board applies those standards

to determine if there has been a Rehabilitation Act violation. Id. An agency is

required to make reasonable accommodations to the known physical and mental

limitations of an otherwise qualified individual with a disability unless the agency

can show that the accommodation would cause an undue hardship on its business

operations. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014);

29 C.F.R. § 1630.9(a). An appellant may establish a disability discrimination

claim based on failure to accommodate by proving the following by preponderant

evidence: (1) she is an individual with a disability, as defined by 29 C.F.R.

§ 1630.2(g); (2) she is a qualified individual with a disability, as defined by

29 C.F.R. § 1630.2(m); and (3) the agency failed to provide her a reasonable

accommodation. Miller, 121 M.S.P.R. 189, ¶ 13.

The parties do not dispute that the appellant proved that she had numerous

medical conditions and she was an individual with a disability. Initial Appeal

File (IAF), Tab 76, Initial Decision (ID) at 21-22 & n.11. We also agree with the

administrative judge that the agency did not provide the appellant with a gliding

work schedule, telework (in the manner approved by the agency), and extra time

We deny the appellant’s motion to dismiss the agency’s petition for review for failure

to provide interim relief. Petition for Review File, Tab 4. The issuance of our final

decision in this matter renders moot any dispute concerning the agency’s compliance in

this regard. Owens v. Department of Homeland Security, 2023 MSPB 7, ¶ 10. If the

appellant believes that the agency is in noncompliance with the Board’s Final Order,

she may file a petition for enforcement in accordance with the instructions provided

below.

for non-exigent assignments. ID at 23-26. The agency asserts on review that the

administrative judge did not expressly analyze whether the appellant satisfied her

burden to prove that she was a qualified individual with a disability. PFR File,

Tab 1 at 18. We do so now.

A qualified individual with a disability is an individual who “satisfies the

requisite skill, experience, education and other job-related requirements of the

employment position such individual holds or desires and, with or without

reasonable accommodation, can perform the essential functions of such

position.” 29 C.F.R. § 1630.2(m); see 42 U.S.C. § 12111(8); Haas, 2022 MSPB

36, ¶ 28. The appellant’s prior performance evaluations reflect that she

satisfactorily performed in the Intelligence Research Specialist position for more

than 15 years. 3 ID at 20 n.9; IAF, Tab 14 at 435.

In the initial decision, the administrative judge found that the essential

functions of the position did not include Accountability for Results, a critical

element, and two tasks contained therein, responding constructively to managerial

criticism and independently setting and meeting deadlines. ID at 19-20. The

agency challenges the administrative judge’s assessment of these essential

functions on review. PFR File, Tab 1 at 18, 22-25. Even if we assume for the

purposes of our analysis that Accountability for Results and the two tasks

contained therein were essential functions of the position, a different outcome is

not warranted.

We modify the initial decision to explicitly find that the appellant is a

qualified individual with a disability because we agree that she proved that she

could perform the essential functions of the position with accommodations such

We have considered the agency’s assertion that the administrative judge’s reliance on

the appellant’s prior performance evaluations was misplaced, and it was not “legally

required to overlook” her past poor performance. PFR File, Tab 1 at 26-27. Indeed, as

part of its burden in an unacceptable performance action, the agency was required to

prove by substantial evidence that the appellant’s performance was unacceptable during

the appraisal period, and we agree with the administrative judge that it met its burden in

this regard. ID at 11; see Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 15.

as extensions of time to perform non-exigent assignments, a gliding work

schedule, and ample telework—accommodations that the agency approved during

the performance improvement plan (PIP) period—but her supervisor did not

provide to her during that period. ID at 21-26. We also agree with the

administrative judge that, if the appellant had been given such accommodations

during the PIP, she would have passed the PIP. ID at 23-26. We have considered

the agency’s arguments regarding the administrative judge’s assessment of each

of the approved accommodations, but a different outcome is not warranted.

Telework

The administrative judge noted that the agency disallowed telework before

it placed the appellant on a PIP, then restored it 40 days into the PIP, and she

found that the appellant did not have the benefit of any telework during the PIP

period. ID at 25. The administrative judge also found that the appellant was not

offered more than 2 days per week of telework, which was less than that

described in the approved accommodation. 4 Id. She further found that scheduled

and ad hoc telework would have assisted the appellant in passing the PIP. ID

at 26.

On review, the agency asserts that the administrative judge erred because

the appellant was on maximum telework for 7 months during fiscal year 2021

(from October 2020 to April 2021) and her performance was unacceptable, even

though the supervisor provided some positive feedback during this time. ID

at 25-26; PFR File, Tab 1 at 30. Indeed, we have affirmed—and the appellant

does not challenge on review—the administrative judge’s finding that the agency

proved by substantial evidence that her pre-PIP performance was unacceptable.

ID at 11. However, the fact that the appellant’s performance was unacceptable

during this time frame—when she was on maximum telework—does not warrant a

different outcome on her failure to accommodate claim. During the earlier time

The agency’s Health Services approved “[m]aximum ongoing, recurring telework” and

“[s]ituational telework if medically necessary.” IAF, Tab 43 at 47.

frame, the appellant did not have the additional accommodations that the agency

approved during the PIP, such as extra time for non-exigent assignments and a

gliding work schedule. Therefore, we cannot conclude that the appellant would

have performed unsuccessfully during the PIP based on her unacceptable

performance during this earlier time frame.

The agency also challenges the administrative judge’s finding that the

appellant “did not have the benefit of any telework during the PIP.” PFR File,

Tab 1 at 31; ID at 25. As support for this argument, the agency explains that it

was under no obligation to provide the appellant with telework as an

accommodation “before she submitted a complete [reasonable accommodation]

package, which she did not do until after the issuance of the PIP,” 5 and it

provided the appellant with 2 days per week of scheduled telework and ad hoc

telework. PFR File, Tab 1 at 31 (emphasis in original). These arguments are not

persuasive.

Notably, the appellant told the reasonable accommodation program

manager (RAPM) that she would provide documentation to support her

accommodation requests as soon as she received them because she did not “want

to delay the process” and she knew that documentation from one provider would

take a long time. IAF, Tab 40 at 40. Despite having given medical

documentation to the RAPM as early as September 1, 2021, to support her request

for telework as an accommodation, the RAPM did not forward any of the

appellant’s medical documentation to Health Services until November 16, 2021,

at the earliest. IAF, Tab 68 at 431-32 (testimony of the RAPM). Between

November 16 and 30, 2021, Health Services determined that the appellant was

The agency decided to wait to forward the appellant’s documentation for a “complete

RA package,” i.e., after she submitted all of her medical documentation. IAF, Tab 68

at 424-27 (testimony of the reasonable accommodation program manager). However,

there was nothing that required it to wait for a “complete [] package” before taking

action on any of her reasonable accommodation requests once she started submitting

documentation.

eligible for “[m]aximum ongoing, recurring telework.” IAF, Tab 43 at 46-47; ID

at 5-7. However, the appellant’s supervisor, who knew on November 30, 2021,

that telework had been approved as an accommodation, delayed communicating

this approval to the appellant until December 10, 2021, nearly 6 weeks into the

PIP. 6 IAF, Tab 13 at 127. Then, the supervisor rejected the appellant’s request

for telework on Mondays and Fridays and only permitted her to telework 2 days

per week and on an ad hoc basis as medically necessary. ID at 25-26; IAF,

Tab 68 at 365 (testimony of the supervisor). The agency concedes that the

appellant only worked “a few days” during the PIP period between December 10,

2021, and January 5, 2022, because of the two Federal holidays and the

appellant’s annual leave. PFR File, Tab 1 at 35. We are not persuaded that the

“few days” of telework provided by the agency, which was inconsistent on its

face with the accommodation approved by Health Services, warrants a different

outcome on this issue.

Extra time

The agency approved, as an accommodation, “[a]llowing extra time, as

needed, to meet deadlines in non-exigent circumstances.” IAF, Tab 43 at 47. In

the initial decision, the administrative judge noted that the supervisor testified

that she “always” gave the appellant extra time on assignments, but the

administrative judge found that this testimony was undermined by evidence that

the supervisor avoided discussing extra time with the appellant as an

accommodation. ID at 24; see Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987) (stating that any prior inconsistent statements by the witness

could help resolve credibility issues). Further, the administrative judge noted that

the supervisor did not explain how she gave the appellant extra time on various

PIP assignments; rather, the supervisor testified that she waited until she deemed

the assignment late and then set a deadline, even though no investigator had

The supervisor also delayed communicating approval of the appellant’s other

requested accommodations until December 21, 2021. IAF, Tab 44 at 18.

complained about the appellant missing a deadline and other Intelligence

Research Specialists usually set their own deadlines in cooperation with the

investigators. ID at 24; IAF, Tab 68 at 138-39 (testimony of the supervisor). The

administrative judge found that the agency did not approve or provide additional

time to the appellant and her perceived slowness was a major tension between the

appellant and her supervisor. ID at 24. The administrative judge also found that

communicated extensions of time in advance of a set deadline would have

assisted the appellant with some of her medical conditions, the appellant proved

that she was denied extensions of time as an accommodation, and such an

accommodation would have helped her pass her PIP. Id.

The agency asserts on review that the administrative judge erred when she

concluded that it denied the appellant extra time on assignments and she would

have performed successfully during the PIP with such an accommodation. PFR

File, Tab 1 at 32-34. In pertinent part, the agency asserts that the appellant’s

medical documentation did not specify any particular manner in which the extra

time accommodation should be effectuated. Id. at 32. The agency further states

that, regardless of how the supervisor extended deadlines, the appellant received

extensions, she did not produce successful work with these extensions, and some

assignments were still outstanding at the conclusion of the PIP period. Id.

at 32-33.

The agency’s assertions are not persuasive. The supervisor’s apparent

decision to unilaterally determine when an assignment was late and then set

deadlines, without accounting for input from any diversion investigator or the

non-exigent nature of most diversion investigations, seems unwarranted and

arbitrary. ID at 19, 24; IAF, Tab 68 at 41 (testimony of the appellant) (explaining

that diversion investigations are “seldom exigent”). Importantly, the

administrative judge noted that there was no evidence that the appellant

performed her functions so slowly that the data was “ultimately useless in

assisting investigative agents” for any assignment listed in her PIP. ID

at 21 n.10. In fact, the administrative judge noted that the record did not indicate

that the appellant missed any investigator’s deadline. Id. We discern no error

with the administrative judge’s findings and conclusions in this regard.

Gliding work schedule

The appellant requested, as an accommodation, a gliding work schedule. 7

IAF, Tab 40 at 28. Health Services approved, as an accommodation,

“adjustments to scheduled work hours as can be supported” due to medical

documentation, which, among other things, stated that the appellant’s chronic

medical conditions impaired her ability to maintain a regular 9:00 a.m. to

5:00 p.m. work schedule and/or commute to work in the early morning. IAF,

Tab 43 at 47. The administrative judge found that the agency denied the

appellant’s request for a gliding schedule, and such a flexible schedule would

have helped her pass the PIP. ID at 24-25.

On review, the agency challenges the administrative judge’s findings in

this regard. PFR File, Tab 1 at 34-38. In particular, the agency asserts that the

administrative judge wrongly assumed that “only a ‘gliding work schedule’

constituted a ‘flexible work schedule.’” Id. at 34. The agency asserts that it

provided the appellant a flexible schedule and it was not required to offer her an

open-ended schedule, which would require it to “accept unreliable attendance.”

Id. at 35. These assertions are not persuasive.

The appellant’s supervisor testified that she was told that a gliding

schedule was not available “to core employees because [they] have [their] core

work hours.” IAF, Tab 68 at 359 (testimony of the supervisor); ID at 25.

However, this rationale is insufficient to justify a denial of this requested

accommodation. See, e.g., Equal Employment Opportunity Commission

A standard schedule was 8:30 a.m. to 5:00 p.m. each day; a “flexitour schedule,”

which the appellant had, was 9:30 a.m. to 6:00 p.m. each day; and a gliding schedule

would allow her to have a different start time each day, including past 6:00 p.m. on

occasion. IAF, Tab 68 at 457-58 (testimony of the appellant).

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under

the Americans with Disabilities Act (Oct. 17, 2002), 2002 WL 31994335 at *18

(“An employer must provide a modified . . . schedule when required as a

reasonable accommodation, absent undue hardship, even if it does not provide

such schedules for other employees.”) (emphasis supplied); see 42 U.S.C.

§ 12111(9)(B) (stating that a reasonable accommodation may include a “modified

work schedule”). The agency has identified no undue hardship in this regard.

Indeed, because the appellant already had a flexitour work schedule and because

she sought further adjustments to her work schedule as a reasonable

accommodation, it was incumbent on the agency—either the supervisor or the

RAPM—to evaluate what additional schedule flexibilities it could provide to her.

Moreover, we are not persuaded that the appellant’s request for a gliding schedule

constituted an “open-ended schedule,” which would have required the agency to

“accept unreliable attendance.” PFR File, Tab 1 at 35. Any agency concerns

about the reliability of appellant’s attendance with a gliding work schedule could

have been ameliorated by requiring that the appellant, among other things, advise

her supervisor when she started and stopped working each day.

We have considered the agency’s remaining assertions on review, but we

conclude that they do not warrant a different outcome. For example, the agency

asserts that the appellant could not prove that she could have drafted reports of

investigation and an intelligence chart, which were part of her PIP goals, even

with the approved accommodations because the administrative judge found that

the agency proved by substantial evidence that the appellant did not meet the PIP

goals. PFR File, Tab 1 at 27 (citing ID at 14). We disagree. The fact that the

administrative judge found that the agency proved by substantial evidence 8 that

the appellant’s performance remained unacceptable in at least one critical element

Substantial evidence is defined as the degree of relevant evidence that a reasonable

person, considering the record as a whole, might accept as adequate to support a

conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).

Substantial evidence is a lower standard of proof than preponderant evidence. Id.

after the PIP does not preclude a finding that the appellant met her burden to

prove by preponderant evidence 9 that the agency failed to accommodate her.

Indeed, in the administrative judge’s analysis of the appellant’s PIP and post-PIP

performance, she noted that the appellant presented a detailed defense to each of

the findings in the notice of proposed removal. ID at 14. In particular, the

administrative judge acknowledged the appellant’s position that the supervisor’s

instructions were poorly or unfairly conceived and impossible to achieve, and she

found the appellant’s rebuttals “detailed and well-reasoned and not less

convincing than the agency’s evidence.” Id.

ORDER

We ORDER the agency to cancel the removal and retroactively restore the

appellant, effective May 3, 2022. 10 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.

Preponderant evidence is the degree of relevant evidence that a reasonable person,

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

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

In the initial decision, the administrative judge ordered the agency to cancel the

removal and to retroactively restore the appellant, effective May 3, 2024. ID at 26. We

clarify that the effective date is May 3, 2022.

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 TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your compensatory

damages, including pecuniary losses, future pecuniary losses, and nonpecuniary

losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss

of enjoyment of life. To be paid, you must meet the requirements set out at

42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,

1201.202, and 1201.204. If you believe you meet these requirements, you must

file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF

THE DATE OF THIS DECISION. You must file your motion with the office that

issued the initial decision on your appeal.

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

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

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.

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

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