# Lupita Holguin-Struthers v. Social Security Administration

> Merit Systems Protection Board · March 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11278407

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 19, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LUPITA HOLGUIN-STRUTHERS, DOCKET NUMBER
Appellant, SF-0752-23-0434-I-1

v.

SOCIAL SECURITY DATE: March 19, 2026
ADMINISTRATION,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donald Struthers , Spokane, Washington, for the appellant.

Chad M. Troop , Esquire, Baltimore, Maryland, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement appeal for lack of jurisdiction.
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

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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 further address the appellant’s
contention that the agency delayed its denial of her reasonable accommodation
request, we AFFIRM the initial decision.

BACKGROUND
The agency employed the appellant as a GS-5 Claims Assistant in the
agency’s Spokane Field Office in Spokane, Washington. Initial Appeal (IAF),
Tab 1 at 1, 9, 12. Her daily duties included clerical tasks such as processing mail,
scanning, and processing checks and money orders. IAF, Tab 13 at 96-103. She
also performed some reception services. Id. at 98. She and many other agency
employees teleworked during the pandemic, but effective March 30, 2022, the
agency reopened the Spokane Field Office. Id. at 112-14, 170, 198-99.
The appellant requested a reasonable accommodation on February 11,
2022, including, as relevant here, full-time telework. Id. at 210-12. By letter
dated February 17, 2022, her second-level supervisor advised the appellant that
her position was not telework-eligible. Id. at 194-95, 206. On March 15, 2022,
the appellant’s doctor completed documentation stating that the appellant’s severe
anxiety was triggered in the office, impacting her ability to concentrate and do
her job. Id. at 214-17. On March 24, 2022, the appellant’s first-level supervisor
sent the appellant an email advising her that she would “continue teleworking
3

full-time until the reasonable accommodation request [was] decided.” IAF, Tab 6
at 19. The following day, the appellant’s second-level supervisor sent the
appellant an email stating that he was “unable to provide [her] with an interim
accommodation” that included telework. Id. at 20. Rather than return to the
office on March 30, 2022, the appellant began a period of Family Medical and
Leave Act (FMLA)—protected leave on that date. IAF, Tab 6 at 22, Tab 13
at 64-65. In May 2022, she submitted medical notes reflecting that she was at
risk for serious illness if exposed to COVID-19, and that she was “unable to
perform the essential functions” of her position. IAF, Tab 13 at 223-24.
The agency’s acting National Reasonable Accommodation Coordinator
(RAC) denied the appellant’s request for full-time telework on June 19, 2022, for
a number of reasons, including that the agency was not required to eliminate the
appellant’s essential in-office duties of processing and scanning mail and
providing reception services to accommodate the appellant. IAF, Tab 13
at 108-11. The appellant’s doctor cleared her to work part-time on July 11, 2022,
and then full-time starting on July 18, 2022, with no mail or scanning duties,
prolonged standing, or repetitive upper-body motion. Id. at 225, 229. The
appellant returned to the office on July 11, 2022. IAF, Tab 1 at 6, Tab 6 at 24.
On July 29, 2022, the appellant submitted a note from her medical doctor,
requesting that the appellant not be assigned mailing or scanning duties, or other
duties requiring prolonged standing or repetitive upper-body motion. IAF,
Tab 13 at 230-31, 233. That same day, the appellant told her first -level
supervisor that there were no accommodations or equipment that would enable
her to process mail. Id. at 230, 242. The appellant then called her husband to
pick her up and never returned to work. Id. at 237, 242.
The appellant advised her first-level supervisor on August 8, 2022, that she
was resigning effective July 31, 2022, and requesting disability retirement “due to
a serious health condition,” which prevented her from “meet[ing] the expectations
as Claims Assistant.” Id. at 234-35. Despite her statement about disability
4

retirement, the agency processed a Standard Form 50 reflecting the appellant’s
retirement under a “special option” of early-out retirement. Id. at 95. According
to the appellant, the agency only offered her the early-out retirement option. IAF,
Tab 1 at 6, Tab 6 at 11, 28. The appellant filed the instant appeal alleging that
her retirement was involuntary. IAF, Tab 1.
The administrative judge issued an order that informed the appellant of her
burden of proving the Board’s jurisdiction over her alleged involuntary retirement
claim and directed her to file evidence and argument to support her claim. IAF,
Tab 3. The appellant responded, and the agency replied. IAF, Tabs 6, 13.
The administrative judge issued an initial decision, which dismissed the
appeal for lack of jurisdiction on the written record. IAF, Tab 14, Initial
Decision (ID) at 1, 13. She found that the appellant failed to nonfrivolously
allege that her retirement was involuntary based on the agency’s denial of her
request for full-time telework. ID at 9-11. The administrative judge reasoned
that the appellant did not allege how full-time telework would enable her to
perform the essential functions of her position. ID at 11. The administrative
judge also found that the appellant failed to nonfrivolously allege that her
retirement was involuntary based on a hostile work environment. ID at 12-13.
5

The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition for review, and the
appellant has replied. 2 PFR File, Tabs 5, 8.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has not nonfrivolously alleged that her retirement was involuntary
based on the agency’s denial of her reasonable accommodation request.
The appellant reasserts on review that her retirement was the result of the
agency’s wrongful denial of full-time telework as an accommodation. PFR File,
Tab 1 at 8. An employee-initiated action, such as a retirement, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement,
however, is equivalent to a removal and therefore within the Board’s jurisdiction.
Id.
To prove that her retirement amounted to a constructive removal, the
appellant must show that (1) she lacked a meaningful choice in the matter, and (2)
it was the agency’s wrongful actions that deprived her of that choice. Bean v.
U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). If the appellant makes a
nonfrivolous allegation of fact that, if proven, could establish these two elements,

2
A reply is limited to the factual and legal issues raised by another party in the
response to the petition for review. 5 C.F.R. § 1201.114(a)(3). It may not raise new
allegations of error. Id. Accordingly, we will not consider arguments first raised by the
appellant in her reply, such as her assertions regarding prior incidents of “hostile
attitudes” in the workplace. PFR File, Tab 8 at 6-9; see Lin v. Department of the Air
Force, 2023 MSPB 2, ¶ 8 n.4 (declining to consider new arguments that were first
raised in a reply brief). The appellant also submits two documents with her reply. PFR
File, Tab 8 at 19-20. One of the documents is already part of the record below, and the
other document is an award recognizing the appellant’s performance. PFR File, Tab 8
at 19-20; IAF, Tab 6 at 28. As such, we do not consider them further here. See Russo
v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (explaining that
evidence submitted on review that was included in the record below and considered by
the administrative judge is not new).
6

then she is entitled to a hearing at which she must prove jurisdiction by
preponderant evidence. See Thomas v. Department of the Navy, 123 M.S.P.R.
628, ¶ 11 (2016); Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 n.5
(2016) (defining nonfrivolous allegations of Board jurisdiction as allegations of
fact that, if proven, could establish a prima facie case that the Board has
jurisdiction over the matter at issue). In determining whether the appellant’s
submissions set forth a nonfrivolous allegation of jurisdiction entitling her to a
hearing, an administrative judge may consider an agency’s documentary
submissions; however, to the extent the agency’s evidence contradicts the
appellant’s otherwise adequate prima facie showing of jurisdiction, the
administrative judge may not weigh evidence and resolve conflicting assertions,
and the agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994).
When, as here, allegations of discrimination and reprisal are alleged in
connection with a determination of voluntariness, such evidence may only be
addressed insofar as it relates to the issue of voluntariness and not whether the
evidence would establish discrimination or reprisal as an affirmative defense.
Pickens v. Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001). In other
words, even if an agency’s actions are discriminatory, the appellant still must
show how those actions coerced her resignation. See Tripp v. Department of the
Air Force, 59 M.S.P.R. 458, 461 (1993). Thus, an agency’s failure to
accommodate an eligible employee is a factor to be considered in assessing
whether a retirement was involuntary. Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 16, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). To prevail on
a claim that the agency denied her a reasonable accommodation, an appellant
must prove that she is a qualified individual with a disability, meaning that she
can “perform the essential functions” of her position or one she desires with or
without reasonable accommodation. 42 U.S.C. §§ 12111(8), 12112(b)(5); Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29.
7

The administrative judge concluded that the appellant’s essential job duties
included processing incoming and outgoing mail and scanning and assigning
matters in the agency’s “WorkTrack” system. 3 ID at 2, 4, 10-11. On review, the
appellant argues only that she was not responsible for outgoing mail. PFR File,
Tab 1 at 14, 17. However, even if true, she does not explain how the elimination
of outgoing mail processing requirements would have made it possible to perform
her remaining job duties, such as scanning or processing incoming mail. Id.
The administrative judge concluded that the appellant failed to allege that
her requested accommodation of full-time telework would enable her to perform
the essential functions of her position. 4 ID at 10-11. The parties do not disagree.
We discern no basis to disturb that finding. 5
The appellant’s May 19, 2022 doctor’s note explicitly stated that the
appellant “is unable to perform the essential job functions as [C]laims

3
The parties have not explained what the WorkTrack system is. Based on its name and
the fact that matters are scanned and assigned in the system, we assume for purposes of
our analysis here that it is a document storage and work tracking system.
4
The appellant argues that the agency violated its agencywide reentry plan when it
found her position ineligible for telework. PFR File, Tab 1 at 8; IAF, Tab 13
at 198-209. She states that her position was not on the list of ineligible telework
positions contained in the plan. PFR File, Tab 1 at 8. Because we agree with the
administrative judge that the Board lacks jurisdiction over the appellant’s claim of
alleged involuntary retirement, we cannot review this harmful error claim. See Penna v.
U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the absence of an
otherwise appealable action, the Board lacks jurisdiction over claims of harmful error
and prohibited personnel practices).
5
On review, the appellant requests that the Board issue a discovery order instructing the
agency to provide additional information regarding when the February 17, 2022 letter
advising her that her position was not telework-eligible was posted to her electronic
file. PFR File, Tab 1 at 6. Below, the agency filed an unopposed motion to stay
discovery until a determination had been made on the jurisdictional issue, which the
administrative judge granted. IAF, Tab 10 at 6, Tab 11. The appellant did not object to
this ruling below and therefore is precluded from doing so on review. Tarpley v. U.S.
Postal Service, 37 M.S.P.R. 579, 581 (1988). Regardless, the appellant does not claim
she was unaware of the determination reflected in that letter that her position was not
telework-eligible. In fact, she requested the reasonable accommodation of continued
full-time telework on February 11, 2022, evidencing her knowledge that the
arrangement was coming to an end. IAF, Tab 13 at 210-11.
8

[A]ssistant.” IAF, Tab 13 at 223. The agency offered and the appellant accepted
reasonable alternatives to full-time telework, such as the use of liberal sick leave,
a flexible break schedule, her own permanent cubicle space, and a chair for her to
sit in at the mail room table. Id. at 106. However, the appellant maintained that
these accommodations were not effective and that she could not complete the
“mail duties” as required by the position. Id. at 229-31, 233, 235. Thus, the
appellant has not nonfrivolously alleged that she was a qualified individual with a
disability. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 34 (2014)
(concluding that an appellant was not a qualified individual with a disability and
therefore did not prove her claim that the agency wrongfully denied her
reasonable accommodation).
Although the appellant argues on review that she was not offered
reassignment, she does not allege that she requested reassignment or that she
identified a position to the agency that she desired. PFR File, Tab 1 at 8-9; see
Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶¶ 3-4, 18
(2015) (indicating that an appellant failed to engage in the interactive process
when he did not, in relevant part, identify any vacant, funded position to which
the agency might have reassigned him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016).
Nor does she claim that she sought reconsideration of the denial of her
accommodation request, as the RAC invited her to do. IAF, Tab 13 at 111.
Instead, the appellant submitted her retirement application. The appellant had the
option to stand and fight the alleged discrimination, harassment, and retaliation
rather than resign, but she chose the latter. See Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 17 (2009).
Although it appears that the appellant argued that the agency should have
permanently reassigned her essential in-office duties to other employees and
allowed her to telework full-time from home, the agency was under no obligation
to remove or reassign the essential duties of the appellant’s position to other
employees to accommodate her restrictions. PFR File, Tab 1 at 23, 25; IAF,
9

Tab 13 at 50; see Henry v. Department of Veterans Affairs, 100 M.S.P.R. 124,
¶ 13 (2005) (stating that excusing an individual from performing an essential
function of her position is not a reasonable accommodation). In light of the
above, the appellant has not nonfrivolously alleged that her retirement was
involuntary based on the agency’s denial of her reasonable accommodation
request.

We modify the initial decision to find that the appellant did not make a
nonfrivolous allegation of jurisdiction based on her contention that the agency
wrongfully failed to provide an interim accommodation or took too long to
respond to her reasonable accommodation request.
The appellant realleges on review that on March 25, 2022, the agency
failed to accommodate her when it refused to grant her interim reasonable
accommodation request for full-time telework while her request for full-time
telework was pending. PFR File, Tab 1 at 7-8; IAF, Tab 13 at 218-19. The
administrative judge did not make an explicit finding regarding this claim; thus,
we address it here and modify the initial decision accordingly.
Equal Employment Opportunity Commission (EEOC) regulations provide
that:
[W]hen all the facts and circumstances known to the agency make it
reasonably likely that an individual will be entitled to a reasonable
accommodation, but the accommodation cannot be provided
immediately, the agency shall provide an interim accommodation
that allows the individual to perform some or all of the essential
functions of his or her job, if it is possible to do so without imposing
undue hardship on the agency . . . .
29 C.F.R. § 1614.203(d)(3)(i)(Q). As discussed above, we agree with the
administrative judge’s finding that the appellant’s requested accommodation for
full-time telework would not allow her to perform the essential functions of her
position. ID at 10-11; IAF, Tab 13 at 105. This also applies to the appellant’s
interim request for full-time telework. The appellant concedes on review that this
interim accommodation would not allow her to perform her essential duties,
arguing instead that it would have enabled her to perform “some but not all of the
10

essential functions of [her] job.” PFR File, Tab 1 at 8. She faults her
second-level supervisor for “insist[ing] that [she] perform a specific duty of [her]
essential job functions.” Id. She has not identified any facts suggesting that it
was reasonably likely that she was entitled to full-time telework as a reasonable
accommodation in March 2022. IAF, Tab 6 at 20. Therefore, the appellant has
failed to allege that the agency’s actions denying her interim request for full-time
telework were wrongful. Bean, 120 M.S.P.R. 397, ¶ 8.
Regarding the appellant’s assertion that the agency took too long to
respond to her reasonable accommodation request, the administrative judge found
that the appellant did not nonfrivolously allege that any delay in the agency’s
decision to deny the appellant telework was coercive because her allegations were
too vague. ID at 12. On review, the appellant also claims that the agency took
too long to deny her reasonable accommodation request under its policies. PFR
File, Tab 1 at 16-17. She alleges that per that policy, the agency had 45 days to
issue a decision, absent extenuating circumstances. Id. at 16.
EEOC regulations provide that the agency will “[d]esignate the maximum
amount of time” allowed to provide or deny a requested accommodation, “absent
extenuating circumstances.” 29 C.F.R. § 1614.203(d)(3)(i)(M). Depending on
the circumstances, a delay can violate an employer’s obligation to provide
reasonable accommodation. EEOC, Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the ADA, Question 10 (Oct. 17,
2002). Factors relevant to the reasonableness of the delay include the reasons for
the delay, its length, the extent to which the employer and employee “each
contributed to the delay,” the agency’s actions during the delay, and the difficulty
of providing the accommodation. Id., Question 10 n.38.
The appellant first requested full-time telework as a reasonable
accommodation on February 11, 2022, and first provided medical documentation
on March 15, 2022. IAF, Tab 13 at 210-17. On March 24, 2022, the appellant’s
first-level supervisor discussed the appellant’s request with her and offered her
11

alternative accommodations, such as liberal leave usage and a chair to sit in for
mail processing. Id. at 151, 218, 220-21. However, the appellant did not agree to
return to the office at that time. Id. at 220-21. On March 30, 2022, the day she
was scheduled to return to the office, she began a period of leave. IAF, Tab 6
at 22, Tab 13 at 64-65, 106. She did not return to work until July 11, 2022. IAF,
Tab 1 at 6, Tab 6 at 24.
On May 20, 2022, while on leave, the appellant submitted medical notes
reflecting that she was at risk for serious illness if exposed to COVID-19, and
that she was “unable to perform the essential functions” of her position. IAF, Tab
13 at 223-24. The RAC subsequently denied the appellant’s request for full -time
telework on June 19, 2022. Id. at 108-11. The appellant was not medically
cleared to return to work by her health care provider until after the agency issued
its decision. Id. at 225.
The appellant’s leave status beginning March 30, 2022, effectively
suspended the interactive process through May 20, 2022. IAF, Tab 13 at 151.
Once the agency received updated medical documentation from the appellant on
May 20, 2022, it acted reasonably in denying her request for full-time telework
30 days later, on June 19, 2022. Id. at 108. This response period is consistent
with the agency’s policy of making a “final decision on [a reasonable
accommodation request] . . . no later than 45 days after the request is made” after
taking into account “extenuating circumstances” and outstanding requests for
medical documentation. Social Security Administration, Office of Personnel,
Reasonable Accommodation Program, § 5.6 (Sept. 2023),
https://www.ssa.gov/eeo/documents/RA/S1630_1%20RA%20Policy%20-
%20ASB%20Certified.pdf (last visited March 19, 2026). Further, the EEOC has
found that an agency did not violate the Rehabilitation Act by taking 4 months to
deny an employee’s request for telework, during which period the agency
requested and received additional medical documentation from the appellant and
met with her regarding her request. Kayce L. v. Department of Veterans Affairs,
12

EEOC Appeal No. 2020004588, 2022 WL 4545791, at *2 (Aug. 23, 2022).
Accordingly, we find that the appellant has not nonfrivolously alleged that her
retirement was involuntary based on the agency’s alleged delay in denying her
full-time telework request.
We discern no basis for disturbing the administrative judge’s findings
regarding the appellant’s claim that her retirement was involuntary based on
intolerable working conditions.
On review, the appellant maintains that the agency created a hostile work
environment that forced her to retire because (1) she was isolated and rejected by
management when she returned to the office in July 2022, such as when her
second-level supervisor told her she had a “vacation” while teleworking; (2) there
was “widespread non-compliance of the mask wearing policy,” which caused her
“daily fear and unnecessary stress,” and the agency “showed no gesture of
compassion or good faith toward [her]”; and (3) the RAC failed to give her
paperwork during a prior EEO case and failed to document a meeting in which the
appellant shared past wrongs with her. PFR File, Tab 1 at 12-13, 19, Tab 8
at 10-11, 19-12; IAF, Tab 1 at 6-7. The administrative judge found below that the
appellant failed to nonfrivolously allege that her retirement was involuntary based
on a hostile work environment. ID at 12.
The appellant alleged, as discussed above, that she was forced to retire
because she was unable to perform the essential functions of her job, even with
accommodation. IAF, Tab 1 at 6, Tab 6 at 7. She further explained that she had
run out of accrued leave. IAF, Tab 1 at 6. On review, she argues that she had to
retire because she was in a leave without pay status and could not afford her
health insurance premiums. PFR File, Tab 1 at 12. She further expresses that,
due to her severe health conditions, had she continued working she “strongly
believe[s] . . . [she] would be dead by now.” Id. This assertion echoes her
statement in her retirement letter that she was “unable to meet the expectations as
Claims Assistant while struggling with [her] illnesses.” IAF, Tab 13 at 235.
13

Taking the appellant’s allegations as true, her inability to perform her job duties
and the exhaustion of accrued leave were the proximate cause of her decision to
retire. Thus, she has not nonfrivolously alleged that her working conditions
between July 11, 2022, when she returned to the office, and July 29, 2022, when
she ceased coming to work, caused her to retire. We agree with the
administrative judge that, because the Board lacks jurisdiction over the
appellant’s retirement, it also lacks jurisdiction over her discrimination and
reprisal claims. ID at 13; Schumert v. U.S. Postal Service, 41 M.S.P.R. 350, 352
(1989) (concluding that the Board lacks jurisdiction to review claims of
discrimination and reprisal in connection with a voluntary resignation).
Accordingly, we find that the administrative judge correctly dismissed this
appeal for lack of jurisdiction. 6

6
On review, the appellant realleges that the agency misinformed her that she needed to
retire first, seek Social Security Disability Insurance Benefits, and then apply for a
disability retirement annuity later. PFR File, Tab 1 at 9-11. The administrative judge
advised the appellant that she could raise a claim of retirement based on alleged
misleading statements, but the appellant has not alleged that any confusion surrounding
her retirement options caused her to retire. IAF, Tab 3 at 2; see Bean, 120 M.S.P.R.
397, ¶ 9 (explaining that the Board has jurisdiction over a retirement based on an
agency’s incorrect advice). Instead, she indicated that she elected to retire first, and the
agency only offered her the option of “early out retirement with no questions.” IAF,
Tab 6 at 13. The Board has jurisdiction over appeals from final decisions of the Office
of Personnel Management (OPM) in administering the Federal retirement systems. Lua
v. Office of Personnel Management, 102 M.S.P.R. 108, ¶ 8 (2006). If the appellant
applied for disability retirement and believes OPM improperly denied that request, she
may wish to file a Board appeal of OPM’s decision. See Angel v. Office of Personnel
Management, 122 M.S.P.R. 424, ¶ 5 (2015) (setting forth the requirements to qualify
for a disability retirement under the Federal Employees’ Retirement System). We
express no view here as to the timeliness of, or the Board’s jurisdiction over, any such
appeal.
14

NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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
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).

7
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.
15

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
16

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
17

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. 8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
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

8
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.
18

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11278407. Public record. Not legal advice.