Cyril Oram v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 30

Docket No. DC-3330-17-0755-I-1

Cyril David Daniel Oram, Jr.,

Appellant,

v.

Department of the Navy,

Agency.

August 31, 2022

James D. Glenn, Norfolk, Virginia, for the appellant.

Paul A. Walker, Fort Meade, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

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

denied his request for corrective action pursuant to the Veterans Employment

Opportunities Act of 1998 (VEOA) and dismissed for lack of jurisdiction his

Uniformed Services Employment and Reemployment Rights Act (USERRA)

appeal. 1 For the reasons set forth in this Opinion and Order, we DENY the

appellant’s petition for review and AFFIRM the initial decision.

1

The appellant has indicated on review that while he originally claimed that the agency

had committed a USERRA violation, he now concedes “that USERRA was not the

2

BACKGROUND

¶2 The appellant, a preference-eligible disabled veteran, was appointed by the

agency to a GS-12 Information Technology (IT) Specialist position in the

competitive service effective May 1, 2017. Initial Appeal File (IAF), Tab 6

at 6-7, Tab 17 at 9. On June 1, 2017, the agency posted a vacancy announcement

for a GS-12 IT Specialist position. IAF, Tab 5 at 7-13. The vacancy

announcement was a merit promotion announcement open to current or former

competitive service employees, and the agency accepted applications from

individuals outside of its own workforce, including Federa l employees and

veterans. Id. at 7-8. The appellant applied for the position, but received a

notification stating that he was ineligible for consideration because he failed to

meet the area of consideration requirement specified in the vacancy

announcement. IAF, Tab 18 at 8. After the appellant contacted the agency’s

human resources office requesting additional information concerning his

disqualification, id. at 9, the agency informed him that he was not considered

because he had been employed in his current position for less than 90 days, and

that an agency must wait at least 90 days after an employee ’s latest

non-temporary competitive appointment before it can promote, transfer, reinstate,

reassign, or detail that employee to a different position or to a different

geographical region. Id.; see 5 C.F.R. § 330.502. Because the appellant had not

served at least 90 days in his current appointment at the time he applied for the

position advertised in the vacancy announcement, he was found ineligible for the

position. IAF, Tab 18 at 9.

¶3 The appellant timely filed a VEOA complaint with the Department of Labor

(DOL). IAF, Tab 6 at 8. After exhausting his administrative remedies with DOL,

id. at 4-5, the appellant filed the instant appeal arguing, inter alia, that the

preferred avenue for redress.” Petition for Review (PFR) File, Tab 5 at 21.

Accordingly, we have not addressed the appellant’s USERRA claim here.

3

agency’s failure to consider his application for the position advertised in the

vacancy announcement violated his right to compete as a preference-eligible

applicant under 5 U.S.C. § 3304(f), IAF, Tab 1. After holding two status

conferences, the administrative judge issued a close of record order concluding

that the appellant nonfrivolously alleged facts establishing B oard jurisdiction

over his VEOA appeal, and that it appeared that the appellant was denied the

opportunity to compete for the position under 5 U.S.C. § 3304(f)(1) and therefore

would be entitled to corrective action. IAF, Tab 24 at 2-7.

¶4 However, after the agency renewed its motion for judgment as a matter of

law, citing the decision from the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed.

Cir. 2015), the administrative judge vacated his initial close of record order and

issued a new close of record order directing the appellant to respond to the

agency’s argument. IAF, Tabs 29-30. The appellant responded to the

administrative judge’s order. IAF, Tab 31. The administrative judge

subsequently issued an initial decision based on the written record , concluding

that, because it was undisputed that the appellant was a Federal employee at the

time the agency declined to consider his application for the IT Specialist position

that was announced under merit promotion procedures and for which the agency

accepted applications from individuals outside its own workforce, pursuant to the

Federal Circuit’s decision in Kerner, he could not prevail as a matter of law on

his claim that he was denied the opportunity to compete for the position . IAF,

Tab 38, Initial Decision (ID) at 7-13.

¶5 On January 2, 2018, the appellant filed a petition for review. Petitio n for

Review (PFR) File, Tab 2. The agency has filed a response in opposition to the

petition for review, and the appellant has filed a reply. 2 PFR File, Tabs 4-5.

2

The only argument the agency raises in its response to the petition for review is that

the appellant’s petition for review is untimely filed by 1 day without good cause shown

4

ANALYSIS

In light of the Federal Circuit’s decision in Kerner v. Department of the Interior,

the administrative judge correctly concluded that, because the appellant was a

current Federal employee, he was not entitled to corrective action for his claim

that he was denied an opportunity to compete under 5 U.S.C. § 3304(f)(1).

¶6 Under VEOA, preference eligibles and certain veterans who unsuccessfully

apply for a position being filled by a Federal agency for which the agency

accepted applications from individuals outside of its own workforce under merit

promotion procedures and who allege that they have been denied the opportunity

to compete afforded to them under 5 U.S.C. § 3304(f)(1) may seek administrative

redress with the Board for a violation of their rights. 3 5 U.S.C. § 3330a(d);

Montgomery v. Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 4

(2016). To establish Board jurisdiction over a claim that he was denied the

opportunity to compete for a vacant position, an appellant must demonstrate that

he exhausted his administrative remedy with DOL, and make nonfrivolous

allegations of the following: that he is a preference eligible or veteran who was

separated from the armed forces under honorable conditions after 3 years or more

of active service; and that the agency denied him the opportunity to compete

under merit promotion procedures for a vacant position for which the agency

accepted applications from individuals outside its own workforce. 4

for the delay. PFR File, Tab 4 at 4-6. Although the finality date for the initial decision

was January 1, 2018, as the appellant correctly observes, that day was a Federal holiday

and so his petition for review was due on the next business day. 5 C.F.R. § 1201.23;

PFR File, Tab 2 at 4; ID at 15. Accordingly, the appellant’s petition for review, which

was received on January 2, 2018, was timely filed, and the agency’s argument is

inapposite.

3

Prior to the passage of the Veterans Benefits Improvement Act of 2004, Pub. L.

No. 108-454, Title VIII, § 804, 118 Stat. 3598, 3626 (2004), this redress right was only

available to preference-eligible applicants, but the Act extended the right to include

covered veterans. Montgomery v. Department of Health & Human Services,

123 M.S.P.R. 216, ¶ 4 n.1 (2016); see 5 U.S.C. § 3330a(a)(1)(B).

4

The Board has held that VEOA right to compete appeals have an additional

jurisdictional element, i.e., a nonfrivolous allegation that the actions at issue took place

5

See Montgomery, 123 M.S.P.R. 216, ¶¶ 4-5; Becker v. Department of Veterans

Affairs, 115 M.S.P.R. 409, ¶ 5 (2010).

¶7 There are two types of selection procedures that agencies generally use to

fill vacancies in the competitive service: (1) the open “competitive examination”

process, which is typically open to the public and is used for employees seeking

to join the competitive service; and (2) the “merit promotion” process used when

a position is filled from within an agency’s workforce or by an applicant from

outside the agency who has “status” in the competitive service, such as a

competitive-service employee at another agency or a preference-eligible veteran.

Kerner, 778 F.3d at 1337; Montgomery, 123 M.S.P.R. 216, ¶ 7 n.3; see Joseph v.

Federal Trade Commission, 505 F.3d 1380, 1381-82 (Fed. Cir. 2007). Agencies

are free to decide whether to use one selection procedure or another, or both , in

filling a particular vacancy. See Dean v. Consumer Product Safety Commission,

108 M.S.P.R. 137, ¶ 11 (2008).

¶8 The advantages veterans receive differ depending on which process is used.

Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1357, 1359 (Fed. Cir.

2016). If an agency uses an open competitive appointment process to fill a

vacancy, preference-eligible applicants are given several advantages, such as

adding points to their ratings and being ranked ahead of other applicants with the

same rating. Joseph, 505 F.3d at 1381. By contrast, “[v]eterans’ point

preferences under the competitive appointment process do not apply in the merit

promotion process.” Id. at 1382. Instead, when an agency uses the merit

on or after the December 10, 2004 enactment date of the Veterans’ Benefits

Improvement Act of 2004. E.g. Styslinger v. Department of the Army, 105 M.S.P.R.

223, ¶ 31 (2007). Without purporting to overrule this case law, we observe that nearly

20 years have now passed since the Veterans’ Benefits Improvement Act was enacted

and that this jurisdictional issue will seldom, if ever, be dispositive in future cases. We

therefore find that, going forward, an accurate exposition of the jurisdictional elements

for a VEOA right to compete appeal may omit reference to the date that the action at

issue took place. See Davis v. Department of Defense, 2022 MSPB 20, ¶ 5 n.1.

6

promotion process and opens the application process to individuals outside of its

workforce, preference-eligible applicants and certain veterans “may not be denied

the opportunity to compete” for such vacancies. Kerner, 778 F.3d at 1337

(quoting 5 U.S.C. § 3304(f)(1)).

¶9 Finally, VEOA complainants do not have an unconditional right to a hearing

before the Board. Coats v. U.S. Postal Service, 111 M.S.P.R. 268, ¶ 13 (2009);

5 C.F.R. § 1208.23(b). Instead, the Board has the authority to decide a VEOA

appeal on the merits, without a hearing, when there is no genuine dispute of

material fact and one party must prevail as a matter of law. 5 Coats, 111 M.S.P.R.

268, ¶ 13.

¶10 It is undisputed that the appellant exhausted his administrative remedies

with DOL and made nonfrivolous allegations that he is a preference eligible and

that the actions at issue took place after the enactment of VEOA . IAF, Tab 6

at 4-7. As the administrative judge found and the parties do not dispute, the

vacancy announcement at issue here solicited applicants for the position from

outside the agency’s own workforce, including from veterans. IAF, Tab 5 at 7-8;

ID at 7-8; IAF, Tab 24 at 5. Therefore, whether the appellant was entitled to

corrective action under VEOA would ordinarily turn on whether he was granted a

bona fide opportunity to compete for the position. See 5 U.S.C. § 3304(f)(1);

Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175, ¶ 9 (2010).

¶11 On review, the appellant argues that the Federal Circuit decision the

administrative judge relied on in reaching his decision, Kerner v. Department of

the Interior, was wrongly decided, and that the administrative judge erred by

relying on it. PFR File, Tab 2 at 6-8. The appellant also cites to decisions from

5

A factual dispute is “material” if, in light of the governing law, its resolution could

affect the outcome. Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5

(2009). A factual dispute is “genuine” when there is sufficient evidence favoring the

party seeking an evidentiary hearing for the administrative judge to rule in favor of that

party if he credits that party’s evidence. Id.

7

the U.S. Supreme Court and the U.S. Court of Claims that he argues are

inconsistent with Kerner. PFR File, Tab 5 at 4, 11-13. We turn now to a brief

recounting of the relevant facts of Kerner.

¶12 The appellant in Kerner was an employee of the Department of the Interior

at the time he applied for two merit promotion vacancies listed by his employing

agency. Kerner, 778 F.3d at 1337. Both vacancies required Federal employee

applicants to meet certain time-in-grade requirements, which Mr. Kerner did not

meet, so the agency found him unqualified for the positions. Id. After the Board

denied Mr. Kerner’s request for corrective action, he appealed to the Federal

Circuit arguing that his employing agency violated his rights by denying him the

opportunity to compete for the positions based on the agency ’s failure to credit

his military and non-Federal civil service, as required by 5 U.S.C. § 3311, when

determining that he did not meet the time-in-grade requirements. Id. at 1336-38.

¶13 The Federal Circuit affirmed the Board’s decision, but in doing so

concluded that, because Mr. Kerner was already employed in the Federal civil

service, 5 U.S.C. §§ 3304(f) and 3311 were inapplicable in his case. Kerner,

778 F.3d at 1338-39. The Federal Circuit concluded that Mr. Kerner’s argument

that the agency was required to consider his mili tary and non-Federal civil service

under 5 U.S.C. § 3311 rested on the presumption that section 3304(f)’s

“opportunity to compete” provisions applied even in instances in which an

applicant already was employed in the Federal civil service. Id. at 1338. After

reviewing the text and legislative history of VEOA and its precursor, the

Veterans’ Preference Act (VPA), the Federal Circuit concluded that nothing in the

statutory language, the legislative history, or case law supported such a

presumption. Id. Instead, the court determined that the statutory text and

legislative history of VEOA and the VPA only evinced an intent to assist veterans

in obtaining an initial appointment to the Federal service—not subsequent

promotions or other intra-agency movement. Id. Additionally, the court

concluded that, because veterans currently employed in a competitive service

8

position are already “eligible to apply” to merit promotion vacancies, such

applicants could not have been the intended beneficiaries of section 3304(f). Id.

¶14 In the instant case, the administrative judge meticulously recounted the

Federal Circuit’s reasoning in Kerner and concluded that, because the appellant

was a Federal employee at the time the agency found him ineligible for

appointment to the IT Specialist position based on its understanding of 5 C.F.R.

§ 330.502 (“the 90-day rule”), the appellant could not prevail as a matter of law

on his argument that he was denied the opportunity to compete under 5 U.S.C.

§ 3304(f). ID at 9. However, in reaching this conclusion, the administrativ e

judge opined that the Federal Circuit in Kerner appeared to have answered a

broader question than was necessary to resolve the factual dispute before it, and

observed that the decision “would appear to be a marked departure from the

application of [the] rights” articulated in 5 U.S.C. §§ 3330a(a)(1)(B) and 3304(f).

ID at 10-13.

¶15 The administrative judge’s point is well taken. The holding the Federal

Circuit appears to have reached in Kerner is that 5 U.S.C. §§ 3304(f) and 3311

“do not require a [F]ederal agency to consider non-[F]ederal civil service

experience when determining whether a veteran employed in the [F]ederal civil

service meets a time-in-grade requirement for the purposes of a merit promotion. ”

Kerner, 778 F.3d at 1339. In arriving at this conclusion, however, the Federal

Circuit seems to have gone well beyond this narrow question and addressed the

broader question of whether Congress intended section 3304’s

opportunity-to-compete provision to apply to preference-eligible applicants who

are already employed in the Federal civil service, and concluded that, based on

Federal court precedent and the statutory text and legislative history of VEOA

and the VPA, it did not. Kerner, 778 F.3d at 1338-39.

¶16 In discussing the statutory language, the court stated that “[t]he text of the

VEOA shows that it is intended to assist veterans in gaining access to [F]ederal

civil service employment, not to give veterans preference in merit promotions. ”

9

Kerner, 778 F.3d at 1338. Continuing, the court also noted that “[t]he legislative

history of the VEOA confirms that Congress did not intend for [section] 3304 to

apply when a veteran or other preference-eligible applicant is already employed

in [F]ederal civil service.” Id. at 1339. Finally, the court concluded its analysis

of the legislative history of VEOA by observing that “statements [in VEOA’s

legislative history] show that the VEOA was specifically targeted to veterans not

already employed in the [F]ederal civil service.” Id.

¶17 Although we share the concerns expressed by the administrative judge, we

agree with his conclusion that the Federal Circuit’s broad statements in Kerner

cannot be dismissed as mere dicta and must have been intended as essential to the

central holding of the case. ID at 12. We are bound to follow precedential

decisions of the Federal Circuit unless they are overruled by the court sitting

en banc. See Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6

(2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015); Coley v. Department of

Transportation, 112 M.S.P.R. 645, ¶ 6 (2009). Accordingly, the administrative

judge correctly concluded that, given the appellant’s undisputed status as a

current Federal employee, he was not entitled to recovery on his claim that he

was denied an opportunity to compete under 5 U.S.C. § 3304(f) as a matter of

law. See Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 12 (2007) (noting

that a VEOA appeal may be decided on the merits, without an evidentiary

hearing, when there is no genuine dispute of material fact and one party must

prevail as a matter of law).

Prior Board decisions that are inconsistent with the Federal Circuit’s decision in

Kerner are overruled.

¶18 As the administrative judge observed, a number of prior Board cases appear

to be in conflict with the Federal Circuit’s holding in Kerner. In Jolley v.

Department of Homeland Security, 105 M.S.P.R. 104, ¶ 20 (2007), the Board

specifically held that “[5 U.S.C. §]3304(f)(1) covers current employees along

with those seeking initial [F]ederal appointment.” Similarly, in Styslinger v.

10

Department of the Army, 105 M.S.P.R. 223, ¶ 32 (2007), the Board concluded that

the agency could not rely on the appellant’s status as a current Federal employee

to reject his application without affording him the opportunity to compete for a

vacancy that was announced under merit promotion procedures and for which the

agency accepted applications from individuals outside its own workforce . In

Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175, ¶ 6 (2010), and

Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶ 7 (2008), the

Board relied on the holdings in Styslinger and Jolley to conclude that “under the

plain language of 5 U.S.C. § 3304(f)(1), all covered individuals, including current

employees and those seeking initial [F]ederal appointments, must be permitted to

compete when applications will be accepted from persons outside the hiring

agency’s work force.” Finally, although the Board in Phillips v. Department of

the Navy, 110 M.S.P.R. 184, ¶¶ 2, 6, 10 (2008), did not specifically state the

proposition that current Federal employees are entitled to corrective action under

VEOA if they are denied the opportunity to compete under 5 U.S.C. § 3304(f), it

implicitly relied on the proposition in concluding that the current Federal

employee applicant in that case was entitled to corrective action. Consequently,

to the extent that they are inconsistent with the Federal Circuit’s holding in

Kerner, these and similar decisions, which conclude that current Federal

employees are entitled to corrective action pursuant to 5 U.S.C. § 3304(f)(1)

when they are denied the opportunity to compete for a position that an agency

announced using merit promotion procedures and for which it accepts

applications from individuals outside of its own workforce , are overruled on this

point.

The appellant’s remaining arguments do not provide a basis for granting his

petition for review.

¶19 Regarding the appellant’s argument that the U.S. Court of Claims decision

in Crowley v. United States, 527 F.2d 1176 (Ct. Cl. 1975), and the U.S. Supreme

Court decision in Hilton v. Sullivan, 334 U.S. 323 (1948), mandate that “veterans

11

preference always applies even in merit promotions and is only pro hibited in

temporary promotions,” and thus are at odds with the Federal Circuit’s decision

in Kerner, this argument is without merit. PFR File, Tab 5 at 4, 11 -13. Crowley

involved the termination of temporary promotions for certain preference-eligible

employees and generally discussed the scope of the VPA, while Hilton dealt with

veteran retention rights under the VPA during a reduction in force. Hilton,

334 U.S. at 336-39; Crowley, 527 F.2d at 1177-85. Neither decision reached the

conclusion identified by the appellant or discussed the extent of the right to

compete under 5 U.S.C. § 3304(f). The appellant also cites the Federal Circuit’s

decision in Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140

(Fed. Cir. 1986), for the proposition that a higher court “cannot uphold any lower

courts (sic) unlawful decisions contradicting veterans preference,” because

Congress “limited edits to veterans preference through the use of legislation .” Id.

at 11. The Federal Circuit’s decision in Cheeseman makes no reference to

veteran’s preference rights and has no bearing on the outcome of this case.

¶20 We also find no merit to the appellant’s argument that his VEOA claim was

harmed by the administrative judge’s decision to docket his constructive adverse

action claim as a separate appeal. 6 PFR File, Tab 2 at 6-7, 15-16, Tab 5 at 5,

8-10. As the administrative judge observed both in this appeal and in the

separately docketed constructive adverse action appeal, the allegations in the

appellant’s constructive adverse action appeal differ materially from those in his

6

During the adjudication of this appeal, the appellant submitted a filing in which he

alleged for the first time that he had been subject ed to a constructive adverse action

when he accepted a transfer to a position within the Department of the Army, which the

administrative judge separately docketed and adjudicated as a constructive adverse

action appeal. IAF, Tab 26 at 4; see Oram v. Department of the Navy, MSPB Docket

No. DC-3443-18-0057-I-1, Initial Appeal File, Tab 1. The appellant has filed a petition

for review of the administrative judge’s decision in that case. MSPB Docket

No. DC-3443-18-0057-I-1, Petition for Review File, Tab 1. A separate Board decision

will be issued for that case.

12

VEOA appeal, rely on a different statutory basis, and are directed at a different

agency component. See ID at 3 n.2; Oram v. Department of the Navy, MSPB

Docket No. DC-3443-18-0057-I-1, Initial Decision at 2-3 (Nov. 27, 2017). We

agree with the administrative judge’s conclusion on this point and see no reason

to disturb that finding on review. Consequently, although the appellant addresses

the merits of his constructive adverse action claim at length in his petition for

review, we need not address those arguments here because those issues are being

adjudicated in the separately docketed appeal. Accordingly, we deny the petition

for review and affirm the initial decision.

ORDER

¶21 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 7

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

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.

13

filing time limits and requirements. Failure to file wi thin 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.

14

(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. ____ , 137 S. Ct. 1975 (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:

15

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. 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).

8

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent ju risdiction 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.

16

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 websi te 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.

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:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.