Opinion

Daniel Moncada v. Executive Office of the President, Office of Administration

2022 MSPB 25

Court: Merit Systems Protection Board
Filed: Aug 3, 2022
Status: Published
Cited by: 16 cases
Authority: More cited than 83.8%

finding that appellant met the definition of an employee under 5 U.S.C. § 7511 (a)(1)(A) because at the time of his removal he occupied a position in the competitive service, was not serving a probationary or trial period, and had completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less

How later courts described this case

finding that appellant met the definition of an employee under 5 U.S.C. § 7511 (a)(1)(A) because at the time of his removal he occupied a position in the competitive service, was not serving a probationary or trial period, and had completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less
finding that, because different terms were used in the same statutory section, Congress intended those terms to have different meanings
stating that the issue of jurisdiction is always before the Board, and may be raised at any time during a Board proceeding
observing that meeting the definition of “employee” and being subject to an appealable action are the only requirements for chapter 75 jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 25

Docket No. DC-0752-15-0954-I-1

Daniel Moncada,

Appellant,

Executive Office of the President, Office of Administration,

Agency.

August 3, 2022

Debra D’Agostino, Esquire, Washington, D.C., for the appellant.

Raheemah Abdulaleem and Scott Delavega, Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The agency has petitioned for review of an initial decision that mitigated

the appellant’s removal to a 60-day suspension. The agency also has filed a

motion to dismiss this appeal for lack of jurisdiction. For the following reasons,

we DENY the motion to dismiss and the petition for review, and AFFIRM the

initial decision, still mitigating the removal to a 60-day suspension.

BACKGROUND

¶2 The Office of Administration (OA), Executive Office of the President

(EOP) appointed the appellant, effective September 3, 2002, to a

competitive-service position as a GS-09 Mail & Messenger Supervisor. Petition

for Review (PFR) File, Tab 5 at 60. The Standard Form (SF) 50 documenting the

appointment indicated that it was made from a certificate of eligibles and subject

to the completion of a 1-year probationary period. Id. at 60, 68. On July 28,

2013, OA promoted the appellant, pursuant to 5 C.F.R. § 335.102, to the

permanent GS-11 competitive-service position of Supervisory Fleet Operations

Manager. Initial Appeal File (IAF), Tab 12 at 25. The approving official for the

appellant’s initial appointment and his promotion was the agency’s Director for

Human Resources Management (HRM). Id.; PFR File, Tab 5 at 60.

¶3 On December 26, 2013, the two employees who ordinarily processed mail

containing money and other accountable items destined for the White House

Complex (money mail) were absent. IAF, Tab 8 at 46. The appellant served as

their backup and therefore was responsible for processing the money mail that

day. Id. at 46-47; Hearing Transcript (HT) (Dec. 18, 2015) at 241 (testimony of

the appellant). The agency subsequently discovered that money and items with a

total value of $2,091.18 were missing from the December 26, 2013 money mail.

IAF, Tab 8 at 46.

¶4 The U.S. Secret Service opened an investigation into the missing money

mail. Id. at 80. Two special agents interviewed the appellant on February 20,

2014. Id. at 47, 80-82. In April 2014, one of the appellant’s subordinates

informed him that the subordinate’s friend was contacted by the Secret Service

about a gift card from the missing money mail. Id. at 49, 59; HT (Dec. 18, 2015)

at 235 (testimony of the appellant). During a second interview with the Secret

Service on May 20, 2014, the appellant informed them about this conversation

with his subordinate. IAF, Tab 8 at 49, 58-59; HT (Dec. 18, 2015) at 235

(testimony of the appellant).

¶5 On January 31, 2014, the appellant received an email from a subordinate,

containing graphic images of women. IAF, Tab 8 at 48, 126-34. The appellant

verbally counseled his subordinate not to send further inappropriate emails. HT

(Dec. 18, 2015) at 225 (testimony of the appellant). The appellant did not report

the incident to anyone else, but retained the email in case his subordinate repeated

the misconduct. Id.

¶6 On February 19, 2014, the appellant deviated from his route while driving

in a Government-owned vehicle to drop off lunch for his girlfriend. Id. at 236-37,

239. The appellant did not obtain authority for the deviation. IAF, Tab 8 at 49.

While en route, the appellant’s coworker, who was a passenger in the vehicle,

warned him that they were “not supposed to be doing anything personal with the

vehicles.” HT (Dec. 18, 2015) at 90-91 (testimony of the appellant’s coworker).

¶7 The agency removed the appellant from his position effective June 23,

2015. IAF, Tab 8 at 20-21. On the SF-50 documenting the removal, the agency

identified the legal authority for the action as 5 U.S.C. chapter 75. Id. at 20. The

decision notice indicated that the action was based on the following charges:

(1) Failure to Follow Procedures (one specification); (2) Inappropriate Conduct

by a Supervisor (two specifications); (3) Lack of Candor (two specifications); and

(4) Unauthorized Use of a Government Vehicle (one specification). Id. at 21-25,

46-49. The events underlying these charges concerned the appellant’s processing

of the money mail on December 26, 2013, participation in the following Secret

Service investigation, handling of his subordinate’s January 31, 2014 email, and

February 19, 2014 route deviation while in a Government vehicle. Id. at 46-49.

The deciding official noted in the removal decision that the agency’s action was

“reasonable and in accordance with 5 U.S.C. §§ 7512-7514, 5 C.F.R. Part 752,

and OA Directive OA.438.01, Disciplinary and Adverse Action.” Id. at 21, 27.

He notified the appellant that he had the right to appeal his removal to the Board.

Id. at 27.

¶8 On appeal, the appellant asserted that the agency lacked sufficient evidence

to prove its charges and imposed a penalty that was unreasonably harsh. IAF,

Tab 1 at 5. In its response, the agency alleged that it had met its burden of

proving the charges and the reasonableness of the penalty, and indicated that the

appellant “may be considered an employee as defined in 5 U.S.C. § 7511(a)(1).”

IAF, Tab 8 at 4-5, 9-14.

¶9 After finding that the Board had jurisdiction over the appeal under 5 U.S.C.

§§ 7511-7513 and holding a hearing, the administrative judge mitigated the

removal to a 60-day suspension, finding that the agency did not prove the Failure

to Follow Procedures, Inappropriate Conduct by a Supervisor, and Lack of

Candor charges. IAF, Tab 17, Initial Decision (ID) at 1, 2-21. However, he

concluded that the agency proved the charge of Unauthorized Use of a

Government Vehicle based on the appellant’s deviation from his route on

February 19, 2014. ID at 16-18. He concluded that a 60-day suspension was the

maximum reasonable penalty for the sole sustained charge. ID at 18-21.

¶10 The agency has filed a petition for review of the initial decision, along with

a motion to dismiss the appeal for lack of jurisdiction. 1 PFR File, Tab 3. The

appellant has filed responses to the petition for review and the motion to dismiss.

PFR File, Tab 5. The agency has filed replies to these responses. PFR File,

Tabs 8-9.

ANALYSIS

The Board has jurisdiction over this appeal.

¶11 OA asserts, for the first time on review, that the Board should dismiss this

appeal for lack of jurisdiction. PFR File, Tab 3 at 307-10. OA first contends that

the right to appeal an action to the Board only applies when the action is taken by

an “agency,” and that OA is not an “agency” under 5 U.S.C. chapter 75. Id.

at 309-11. OA asserts that the term “agency,” for purposes of 5 U.S.C.

chapter 75, means “Executive agency” as defined under 5 U.S.C. § 105, to

include “an Executive department, a Government corporation, and an independent

The Board requested an advisory opinion from the Office of Personnel Management

(OPM) regarding the jurisdictional issue in this case. PFR File, Tabs 10, 13. OPM,

however, has declined to provide an advisory opinion. PFR File, Tab 15.

establishment.” Id. at 311-12. It argues that OA is not any of these types of

entities. Id. The agency relies upon Citizens for Responsibility & Ethics in

Washington v. Office of Administration, 566 F.3d 219, 222-26 (D.C. Cir. 2009)

(CREW), which held that OA was not an “agency” for purposes of the Freedom of

Information Act. PFR File, Tab 3 at 313-14. The CREW court reasoned that,

even though EOP was expressly included in the definition as an “establishment”

in the Executive branch of the Government, OA lacked the “substantial

independent authority” from the President that is the hallmark of such an

establishment. CREW, 566 F.3d at 222-25; PFR File, Tab 3 at 313-14. The

appellant, by contrast, asserts that 5 U.S.C. chapter 75 does not define the term

“agency,” and that Board jurisdiction depends solely upon whether the individual

is an “employee” affected by a covered action. PFR File, Tab 5 at 30-33.

¶12 The issue of jurisdiction is always before the Board, and may be raised by

either party or sua sponte by the Board at any time during a Board proceeding.

Johnson v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 14 (1999). Thus, we address the

jurisdictional issue, even though the agency did not raise it below. 2 PFR File,

Tab 3 at 308-10; IAF, Tab 13 at 1-2.

In addressing the jurisdictional issue, we have considered evidence that the appellant

submitted for the first time on review in response to the agency’s motion to dismiss.

See, e.g., Turner v. U.S. Postal Service, 90 M.S.P.R. 385, ¶ 5 (2001) (explaining that

although the Board will not consider evidence or argument submitted for the first time

on review unless the party shows that it was unavailable when the record closed below,

the Board will consider such evidence and argument when an appellant was not

adequately notified of what is required to establish jurisdiction); PFR File, Tab 5 at 60,

68. Here, the agency did not dispute jurisdiction below, which deprived the appellant

of the opportunity to submit evidence and argument below in support of finding

jurisdiction, and deprived the administrative judge of his ability to develop the record

and assess the relevant information concerning this significant issue.

The only requirements for Board jurisdiction over this appeal are that the

appellant was an employee who was subjected to an appealable adverse

action under chapter 75.

¶13 It is axiomatic that the interpretation of a statute begins with the statutory

language itself. Van Wersch v. Department of Health & Human Services,

197 F.3d 1144, 1148 (Fed. Cir. 1999). When the language provides a clear

answer, the plain meaning of the statute is considered conclusive. Id. Pursuant to

5 U.S.C. § 7513(d), “[a]n employee against whom an action is taken under this

section [governing adverse actions] is entitled to appeal to the Merit Systems

Protection Board under [5 U.S.C. § 7701].” Thus, the plain language of

section 7513(d) provides that the key jurisdictional requirements for a Board

appeal are that an appellant is an “employee” and that the action taken is covered

by the statute. As the U.S. Supreme Court has explained in analyzing the

provisions of 5 U.S.C. chapter 75, “the [Civil Service Reform Act of 1978

(CSRA)] makes [Board] jurisdiction over an appeal dependent only on the nature

of the employee and the employment action at issue,” a proposition which the

Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

have adopted. Elgin v. Department of the Treasury, 567 U.S. 1, 18 (2012); Epley

v. Inter-American Foundation, 122 M.S.P.R. 572, ¶¶ 6, 14 (2015); see Lal v.

Merit Systems Protection Board, 821 F.3d 1376, 1378 (Fed. Cir. 2016) (holding

that title 5 “limits the Board’s jurisdiction over federal workers’ appeals based on

both the nature of the personnel action being contested and the employment status

of the individual complainant”); Todd v. Merit Systems Protection Board, 55 F.3d

1574, 1576 (Fed. Cir. 1995) (explaining that the employee “has the burden of

establishing that she and the action she seeks to appeal [are] within the [B]oard’s

jurisdiction”); 5 C.F.R. § 1201.3(a)(1) (indicating that the Board’s jurisdiction

under chapter 75 depends on the nature of the appellant’s employment and the

agency’s action). Thus, our jurisdictional determination depends on whether the

appellant is an “employee” and whether an appealable action was taken against

him. See 5 U.S.C. §§ 7511(a)(1), 7512.

¶14 It is undisputed that a removal is among the actions covered by the Board’s

chapter 75 jurisdiction. 5 U.S.C. § 7512(1) (listing removals among the actions

to which chapter 75 procedures apply). Because the appellant is in the

competitive service, whether he is an “employee” is governed by 5 U.S.C.

§ 7511(a)(1)(A). That statute defines “employee” as, among other things, an

individual in the competitive service who is not serving a probationary or trial

period under an initial appointment or, with an exception not applicable here, has

completed 1 year of current continuous service under other than a temporary

appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A). The appellant

meets both of the alternative definitions of “employee” under

section 7511(a)(1)(A) because, when he was removed, he occupied a position in

the competitive service, was not serving a probationary or trial period, and had

completed 1 year of current continuous service under other than a temporary

appointment limited to 1 year or less. PFR File, Tab 5 at 60; IAF, Tab 8 at 20-21,

Tab 12 at 17, 25.

¶15 “Congress knows how to exempt a civil service position from the

protections found in chapters 75 and 77 of title 5 if it so desires.” King v. Briggs,

83 F.3d 1384, 1388 (Fed. Cir. 1996); e.g., Todd, 55 F.3d at 1577-78 (finding that

an employee did not have Board appeal rights because she was appointed

pursuant to a statute that specifically authorized agencies to employ individuals

“without regard to . . . sections . . . 7511, 7512, and 7701 of Title 5”). Contrary

to OA’s assertions, neither 5 U.S.C. chapter 75, nor the Board’s regulations

interpreting it, define the term “agency” or otherwise clearly indicate that a

covered action may be appealed by an “employee” only when it has been taken by

some undefined “agency.” 3 See 5 U.S.C. § 7511 (defining various terms relevant

to adverse employment actions); 5 C.F.R. § 1201.4 (providing general definitions

of other words and phrases used by the Board). Rather, the comprehensive

statutory scheme defines the term “employee,” sets forth the actions that are

covered, and indicates which individuals are not covered, and thus do not have

Board appeal rights, by reference to, among other things, the organizations or

agencies within which an individual’s position exists. 4 See Elgin, 567 U.S. at 5

(describing the CSRA as “a comprehensive system for reviewing personnel

action[s] taken against federal employees” (citation omitted)); Lal, 821 F.3d

at 1378 (applying the “fundamental canon of statutory construction that the words

of a statute must be read in their context and with a view to their place in the

overall statutory scheme”). Section 7511(b) excludes certain individuals from

As the agency notes in its petition for review, PFR File, Tab 3 at 310-11, in Aguzie v.

Office of Personnel Management, 116 M.S.P.R. 64, ¶ 9 (2011), the Board held that the

right to appeal an action under 5 U.S.C. § 7513(d) applies when the action falls under

5 U.S.C. § 7513(a), i.e., when a covered action is taken by an “agency” against an

“employee.” The Board in Aguzie did not, however, have the benefit of the Supreme

Court’s decision in Elgin, or the Federal Circuit’s decision in Lal, which are binding

precedent on the Board. See Beal v. Office of Personnel Management, 122 M.S.P.R.

210, ¶ 7 (2015) (explaining that the Board is bound by Federal Circuit precedent).

Moreover, the Board’s holding in Aguzie was made in the context of addressing the

argument by OPM that it was not the proper respondent in the appeal because it merely

directed the employing agency to remove the appellant for suitability reasons, but did

not actually take the action. Aguzie, 116 M.S.P.R. 64, ¶¶ 10-11. Congress has since

excluded OPM suitability actions from the Board’s chapter 75 jurisdiction. 5 U.S.C.

§ 7512(F); Odoh v. Office of Personnel Management, 2022 MSPB 5, ¶ 16. We do not

find Aguzie persuasive here.

We do not address here whether the Board’s jurisdiction over adverse actions taken

against preference-eligible individuals in the excepted service requires jurisdiction over

the “Executive agency” taking the action. Unlike other definitions of “employee” in

5 U.S.C. § 7511, 5 U.S.C. § 7511(a)(1)(B) defines an employee with reference to either

being employed in an Executive agency, the U.S. Postal Service, or the Postal

Regulatory Commission. The appellant is in the competitive service, and thus, whether

he is an “employee” is determined by 5 U.S.C. § 7511(a)(1)(A), as described above.

IAF, Tab 12 at 25.

coverage, not the agencies themselves. For example, individuals whose positions

are within the Central Intelligence Agency, Government Accountability Office,

U.S. Postal Service, Postal Regulatory Commission, Panama Canal Commission,

Tennessee Valley Authority, Federal Bureau of Investigation, and certain

intelligence components and activities are not covered by the subchapter and

generally do not have Board appeal rights. See 5 U.S.C. § 7511(b)(7)-(8). There

is no exclusion for employees occupying positions within OA. See Graves v.

Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016) (explaining that

under the maxim of statutory interpretation expressio unius est exclusio alterius,

meaning the expression of one thing is the exclusion of the other, it should not be

assumed that other things that could have been listed in a statute were meant to be

included; rather, the specific mention of certain things implies the exclusion of

other things).

¶16 Nevertheless, 5 U.S.C. § 7511(b) carves out an exception to the definition

of “employee” for individuals “whose appointment is made by the President[.]”

5 U.S.C. § 7511(b)(3). OA contends that the appellant falls within this exception

because he was appointed by the President. 5 PFR File, Tab 3 at 316-18. In

support of its argument, OA relies on 3 U.S.C. § 107(b)(2), which provides that

the President or his designee is authorized to “employ” individuals in OA in

accordance with 5 U.S.C. § 3101, which provides general employment authority

It further asserts that the President “must have the authority to manage his staff as he

sees fit and not have the Board force him to rehire OA employees.” PFR File, Tab 3

at 316. It does not cite to any authority for this proposition. The agency’s stated policy

concerns, presented by counsel in litigation without reference to regulations, rulings, or

administrative practices are not a basis to interpret 5 U.S.C. § 7513(d). See Garza v.

Office of Personnel Management, 83 M.S.P.R. 336, ¶¶ 12-13 (1999) (declining to defer

to the interpretation of a statute presented by agency counsel during litigation when its

interpretation was unsupported by regulations, rulings, or administrative practice)

(citing Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-13 (1988)), aff’d

per curiam, 250 F.3d 763 (Fed. Cir. 2000) (Table). Instead, we must apply the statute

as written.

to agencies, “subject to the limitation specified in section 114 of this title,” which

addresses a limitation in pay. Individuals employed under 3 U.S.C. § 107(b)(2)

are not specifically excepted from adverse action appeal rights, however.

Additionally, section 107(b) does not indicate that the President or his designee

may “appoint” individuals like the appellant. While section 107(b)(2) only

authorizes the President or his designee to “employ” individuals in OA,

section 107(b)(1), by contrast, authorizes him or his designee to “appoint”

“without regard to such other provisions of law as the President may specify

which regulate the employment and compensation of persons in the Government

service,” no more than five employees at rates not exceeding the current rates of

basic pay for level III of the Executive Schedule, and no more than five

employees at rates not exceeding the current maximum rate of basic pay for

GS-18 employees. The appellant’s positions were in neither of these categories.

¶17 Because the terms “appoint” and “employ” are used in the same statutory

section, we find that Congress intended those terms to have different meanings,

and that individuals like the appellant who are employed in OA have not

necessarily been “appointed” by the President. E.g., Soliman v. Gonzales,

419 F.3d 276, 283 (4th Cir. 2005) (holding that when Congress has used two

distinct terms, such as “fraud” and “theft,” within the same statute, “the

applicable canons of statutory construction require that we endeavor to give

different meanings to those different terms”) 6; Vesser v. Office of Personnel

Management, 29 F.3d 600, 605 (Fed. Cir. 1994) (explaining that a statute must, if

possible, be construed to give meaning to every word); Brodsky v. Office of

Personnel Management, 108 M.S.P.R. 228, ¶¶ 19-20 (2008) (determining that the

While decisions of the Federal Circuit are controlling authority for the Board, other

circuit courts’ decisions are considered persuasive, but not controlling, authority.

Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 15 n.12 (2016). We are

persuaded by the reasoning in Soliman.

use of two different words, “employee” and “retiree,” in the same regulation

indicated that they were intended to have different meanings); Fishbein v.

Department of Health & Human Services, 102 M.S.P.R. 4, ¶ 9 (2006) (holding

that 42 U.S.C. § 209(f), which uses both the words “employed” and “appointed,”

clearly distinguishes between the two). Thus, we decline to find in title 3 any

exemption to the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A) for

individuals like the appellant. See Lal, 821 F.3d at 1381.

¶18 However, there is no explanation or definition in 5 U.S.C. § 7511(b)(3)

clarifying what it means to be appointed by the President. To the extent that

section 7511(b)(3) is ambiguous, the statute’s legislative history provides insight

into Congress’s intention. Martin J. Simko Construction, Inc. v. United States,

852 F.2d 540, 542-43 (Fed. Cir. 1988) (holding that when “the language of a

statute does not clearly state the legislature’s intent,” it is necessary to “look to

the legislative history for an explanation of legislative intentions”).

¶19 Section 7511(b)(3) was enacted as part of the Civil Service Due Process

Amendments of 1990 (Amendments), Pub. L. No. 101-376, § 2, 104 Stat. 461,

461-62, by which, among other things, Congress sought to eliminate the general

exclusion of nonpreference eligible excepted-service employees from

“independent [Board] review.” H.R. Rep. No. 101-328, at 3 (1990), as reprinted

in 1990 U.S.C.C.A.N. 695, 697. While extending appeal rights to certain

individuals in the excepted service, the Amendments simultaneously excluded

specific groups within the excepted service from coverage, including

“presidential appointees.” 5 U.S.C. § 7511(b)(3); H.R. Rep. No. 101-328, at 2-3,

as reprinted in 1990 U.S.C.C.A.N. at 696-97. In explaining the exclusion,

Congress noted that the bill “generally extends procedural rights to attorneys,

teachers, chaplains, and scientists, but not to presidential appointees,” and that

“the key to the distinction between those to whom appeal rights are extended and

those to whom such rights are not extended is the expectation of continuing

employment with the Federal Government. Lawyers, teachers, chaplains, and

scientists have such expectations; presidential appointees and temporary workers

do not.” H.R. Rep. No. 101-328, at 4, as reprinted in 1990 U.S.C.C.A.N. at 698.

Similarly, Congress explained that the bill “explicitly denies procedural

protections to presidential appointees, individuals in Schedule C positions [which

are positions of a confidential or policy-making character] and individuals

appointed by the President and confirmed by the Senate,” and that “[e]mployees

in each of these categories have little expectation of continuing employment

beyond the administration during which they were appointed” because they

“explicitly serve at the pleasure of the President or the presidential appointee who

appointed them.” H.R. Rep. No. 101-328, at 4-5, as reprinted in 1990

U.S.C.C.A.N. at 698-99. Thus, by enacting section 7511(b)(3), we find that

Congress intended to exclude from the procedural and appeal rights of 5 U.S.C.

chapter 75 those individuals appointed to the excepted service by the President,

who have little expectation of continuing employment beyond the administration

during which they were appointed and who explicitly serve at the pleasure of the

President.

¶20 Conversely, the appellant’s employment spanned two presidential

administrations, from 2002 through 2015. The SF-50s in this case show that he

was appointed to the competitive service from a civil service certificate of

eligibles and that his appointment was approved by the Director for HRM. PFR

File, Tab 5 at 60, 68. The record does not identify the selecting official for this

appointment. The agency promoted him to the position of Supervisory Fleet

Operations Manager pursuant to 5 C.F.R. § 335.102, which concerns an

“Agency[’s] authority to promote, demote, or reassign” an employee, not any

presidential authority. IAF, Tab 12 at 25. Thus, we find that the appellant was

not appointed by the President. Absent evidence that the appellant was appointed

by the OA Director, we decline to address the agency’s argument that an

appointment by the Director is equivalent to a presidential appointment. PFR

File, Tab 3 at 318.

¶21 Our interpretation of 5 U.S.C. § 7511(b)(3) as not excluding the appellant

from Board appeal rights is not only consistent with the legislative history of the

Amendments, but is also consistent with OA’s historical position on the appeal

rights of its employees. The Presidential and Executive Office Accountability

Act (PEOAA), Pub. L. No. 104-331, 110 Stat. 4053 (1996) (codified at 3 U.S.C.

§§ 401-471), expanded the rights of individuals employed at the EOP. In

recommending the extension of certain discrimination and labor protections to

EOP employees, the House Report appeared to assume that the Board had

jurisdiction over most EOP employees. See H.R. Rep. No. 104-820, at 40-42

(1996) (indicating that most EOP employees “are covered by Title 5 of the

U.S. Code,” and that “Title 5 [EOP] employees are already entitled to an

administrative . . . hearing” before the Equal Employment Opportunity

Commission or the Board), as reprinted in 1996 U.S.C.C.A.N. 4348, 4375-77.

¶22 The legislative history also includes testimony regarding H.R. 3452, the bill

which became the PEOAA, from Franklin S. Reeder, then-Director of OA.

Mr. Reeder explained that, “[t]he vast majority of [EOP] employees—two thirds

or more—are civil service employees covered by the same protections and rights

as other career executive branch employees under Title 5 of the U.S. Code.”

Presidential and Executive Office Accountability Act: Hearing on H.R. 3452

Before the Subcomm. on Gov’t Mgmt., Info., & Tech. of the Comm. on Gov’t

Reform and Oversight, House of Representatives, 104th Cong. 152 (1996)

(statement of Franklin S. Reeder, Director, Office of Administration, Executive

Office of the President). He contrasted these employees with the remaining one

third, employed “in the four offices closest to the President: the White House

Office, Office of the Vice President, Office of Policy Development, and

Executive Residence.” As to these employees:

By long tradition and express statutory authority, employees in these

four offices have served at the pleasure of the President. As

Congress mandated in the provisions of Title 3 of the United States

Code, these employees are hired “without regard to any other

provision of law regulating the employment or compensation of

persons in the Government service.” . . . This long tradition and

express statutory authority flow from the structure of the federal

government established by the United States Constitution. The

unfettered ability of the President to choose his closest advisers—

and to choose when to dismiss them—is a necessary outgrowth of the

separation and balance of the branches of government established in

the Constitution.

Id. at 152-53. In a footnote, Mr. Reeder added:

The [OA] is also authorized by Title 3, but its employees are, by

design, virtually all career civil servants hired under Title 5

authority. A small number of [OA] employees are Title 3 employees

who serve at the will of the President, on the same standing as

employees in the White House Office and the other three Title 3

offices. See 3 U.S.C. § 107(b)(1)(A). Accordingly, the Office of

Administration is more properly treated as a “Title 5” agency for

purposes of the applicability of employee workplace laws.

Id. at 152 n.1.

¶23 In later proceedings held on the PEOAA bill, the idea of creating a new

entity to review EOP employee claims was abandoned, with Representative

Carolyn Maloney explaining that EOP “employees already have recourse to the

Merit Systems Protection Board.” 7 142 Cong. Rec. H12,283-02, H12,286 (daily

ed. Oct. 4, 1996) (statement of Rep. Maloney). Furthermore, OA’s own directive,

OA.438.01, dated August 11, 2009, provides that OA employees like the

appellant have Board appeal rights for adverse actions, such as removals. IAF,

Tab 8 at 159, 163. The Board has adjudicated cases brought by OA employees in

the past, and there is no indication that OA asserted therein that the Board lacked

As the agency observes, the Veterans Employment Opportunities Act of 1998 (VEOA)

extended title 5 veterans’ preference rules to OA appointments. PFR File, Tab 3 at 321

(citing Pub. L. No. 105-339, § 4(b)(1), 112 Stat. 3182, 3185 (codified at 3 U.S.C.

§ 115(a)). In light of the longstanding recognition of the appeal rights of OA

employees, such as the appellant, we are unpersuaded by the agency’s argument that the

VEOA extension suggests that Congress never intended the remainder of title 5 to apply

to OA employees. Id.

jurisdiction over its employees. See Caveney v. Office of Administration,

64 M.S.P.R. 169 (1994); Williams v. Executive Office of the President,

54 M.S.P.R. 196 (1992).

¶24 For the foregoing reasons, we find that the Board has jurisdiction over this

case because the appellant is an “employee” under 5 U.S.C. § 7511(a)(1)(A), and

OA took an appealable action under 5 U.S.C. § 7512(1). See 5 U.S.C. § 7513(d).

The agency’s petition for review is denied.

¶25 The agency disputes the administrative judge’s findings that it did not prove

the sole specification of its Failure to Follow Procedures charge, both

specifications of its Inappropriate Conduct by a Supervisor charge, and

specification 2 of its Lack of Candor charge. PFR File, Tab 3 at 14-21. 8

The administrative judge properly found that the agency did not prove the

charge of Failure to Follow Procedures.

¶26 The agency alleged that the appellant failed to follow its Mail Support

Operations Division, Standard Operating Procedure 6.2, Money Mail Processing

Procedure (MSOD 6.2). In particular, it alleged that the appellant did not comply

with the requirement that those handling the money mail “[t]ake care to ensure all

containers are secure . . . at all times” because he left the keys to the cage that

contained the money mail in an unlocked safe. IAF, Tab 8 at 47, 151. The

administrative judge found that the standard procedure at the time was to leave

the safe containing the keys in question unlocked during the day. ID at 7. Thus,

he concluded that the appellant’s behavior was consistent with agency practice.

Id. Because the agency failed to identify a procedure that the appellant failed to

follow, the administrative judge found that it did not prove the charge. Id.

The parties do not dispute the administrative judge’s findings that the agency did not

prove specification 1 of its Lack of Candor charge. ID at 11-14. Nor do they challenge

the findings that the agency proved the charge of Unauthorized Use of a Government

Vehicle and that this misconduct bore a direct relationship to the appellant’s Federal

service. ID 16-18. We decline to disturb these well-reasoned findings.

¶27 The agency reasserts on review that it proved the Failure to Follow

Procedures charge because the appellant did not ensure that all money mail

containers were “secure at all times” as required by MSOD 6.2. PFR File, Tab 3

at 9, 15. It relies on the fact that $2,091.18 in money mail was missing on his

watch “[t]hrough either an act of commission or omission by the Appellant.” Id.

at 15. We disagree that the stated expectation in the MSOD 6.2 to ensure the

security of the money mail, in general terms, is itself a procedure. We also are

not persuaded that the fact that the money mail went missing is evidence of the

appellant’s failure to follow procedures. Rather, as the administrative judge

found, the procedure followed by everyone who processed the money mail at the

time was to unlock the safe containing the keys to the secured cage in the

morning, move the money mail to the secured cage and lock it, and then return

the keys to the unlocked safe for the remainder of the day. ID at 4-7. The agency

does not dispute this finding on review. Absent evidence that the appellant

violated a procedure, the agency cannot prove its charge. See Myers v.

Department of Agriculture, 88 M.S.P.R. 565, ¶¶ 24-25 (2001) (finding the agency

did not prove that the appellant failed to follow agency procedures when it

provided no evidence showing how the appellant’s conduct failed to conform to

those procedures), aff’d, 50 F. App’x 443 (Fed. Cir. 2002).

The administrative judge properly found that the agency failed to prove its

charge of Inappropriate Conduct by a Supervisor.

¶28 In specification 1 of this charge, the agency alleged that by failing to secure

the money mail, as alleged in the preceding charge, the appellant “also failed to

ensure that [his] direct reports were following established procedures.” IAF,

Tab 8 at 48. The administrative judge found that there was no evidence

supporting a link between the procedures the appellant followed on December 26,

2013, and the missing money mail. ID at 8-9. The administrative judge observed

that, to the contrary, there was evidence an employee outside of the appellant’s

chain of command took some of the money mail. Id. The agency disputes these

findings. PFR File, Tab 3 at 16-17.

¶29 A supervisor cannot be held responsible for the improprieties of subordinate

employees unless he actually directed or had knowledge of and acquiesced in the

misconduct. Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶ 15

(2014). The following factors are relevant to the “knowledge and acquiescence”

standard: (1) the knowledge the supervisor has, or should have, of the conduct of

his subordinates; (2) the existence of policies or practices within the supervisor’s

agency or division which relate to the offending conduct; and (3) the extent to

which the supervisor has encouraged or acquiesced in these practices and/or the

subordinates’ misconduct. Id.

¶30 The agency has alleged that the appellant knew, or should have known, that

his subordinate took items from the money mail. PFR File, Tab 3 at 16-17.

However, this claim is supported only by the speculation of one of the Secret

Service special agents who investigated the missing money mail that “[e]ither

[the appellant] knew who took it . . . or he asked somebody else to do his job.”

Id. at 17 (citing HT (Dec. 18, 2015) at 54 (testimony of the Secret Service special

agent)). The same special agent testified that the appellant’s subordinate obtained

an item from the money mail from “someone who worked in the mailroom.” HT

(Dec. 18, 2015) at 54 (testimony of the Secret Service special agent). Thus, it

appears that, as the administrative judge found, the item was more likely taken

from the agency by someone outside the appellant’s chain of command. ID

at 8-9. Further, as discussed above in connection with the charge of Failure to

Follow Procedures, the agency has not shown that the appellant failed to comply

with any procedures in processing the money mail. Therefore, the agency also

has not shown that the appellant encouraged or acquiesced in any improper

practices, and has not proven specification 1 of the second charge.

¶31 The agency further contends that it proved the second specification of the

Inappropriate Conduct by a Supervisor charge. PFR File, Tab 3 at 17-19. This

specification concerned the appellant’s alleged mishandling of a different

subordinate’s January 2014 misconduct of sending an inappropriate email. IAF,

Tab 8 at 48, 126-34. The administrative judge found that the appellant verbally

counseled his subordinate not to send future emails of this type. ID at 10; HT

(Dec. 18, 2015) at 208-09 (testimony of the appellant’s subordinate), 224-25

(testimony of the appellant). The administrative judge found this counseling was

consistent with the guidance the appellant received from a former supervisor to be

less harsh in his discipline. ID at 10-11. The agency contends the appellant’s

supervisor merely told the appellant to talk to people more professionally and less

aggressively. PFR File, Tab 3 at 17-18.

¶32 Although the appellant’s former supervisor testified that he told the

appellant to talk to his subordinates more professionally and less aggressively, he

also agreed that the appellant had been “too quick to try to discipline employees,”

and indicated that after a lot of counseling and training the appellant “changed his

aggressive tone and nature toward employees.” HT (Dec. 18, 2015) at 182-84

(testimony of the appellant’s former supervisor). Thus, we find no error in the

administrative judge’s determination that the agency did not prove this

specification because the appellant’s actions regarding the email conformed with

guidance he received and were not inappropriate.

¶33 The agency also argues that the appellant condoned his subordinate’s

unauthorized use of the agency’s email system in violation of 5 C.F.R.

§ 2635.704 because the appellant failed to delete the offensive email or report it

to his management team. PFR File, Tab 3 at 17-18. The regulation cited

prohibits an employee from using or permitting another to use Government

property for unauthorized purposes. 5 C.F.R. § 2635.704(a). It does not set forth

requirements for eliminating evidence of the misconduct or reporting it up the

chain of the command, as the agency appears to believe. Similarly, the agency

does not provide any support for its claim that agency policy requires supervisors

to maintain a record of verbal counselings. PFR File, Tab 3 at 18-19.

¶34 In addition, the agency did not charge the appellant with failing to

investigate who else might have received the email. PFR File, Tabs 18-19; IAF,

Tab 8 at 48. Thus, we decline to consider this argument, which the agency raises

for the first time on review. IAF, Tab 11 at 7-8; Gonzalez v. Department of

Homeland Security, 114 M.S.P.R. 318, ¶ 7 (2010) (explaining that the Board must

review the agency’s decision solely on the grounds invoked by the agency, and

may not substitute what it considers to be a more appropriate basis for the

action); Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)

(finding that the Board generally will not consider an argument raised for the first

time in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence).

The administrative judge properly found that the agency failed to prove

specification 2 of its Lack of Candor charge.

¶35 As explained above, one of the appellant’s subordinates told him that the

Secret Service had contacted the subordinate’s friend about a gift card from the

missing money mail. IAF, Tab 8 at 59; HT (Dec. 18, 2015) at 235 (testimony of

the appellant). The agency contends that it proved the appellant lacked candor

because, as alleged in the proposed removal, the appellant was “not forthcoming”

about this conversation until the Secret Service asked him 1 month later about

any interactions he had with coworkers concerning the missing money mail. IAF,

Tab 8 at 49; PFR File, Tab 3 at 20-21. The administrative judge found that the

appellant appropriately answered the question when asked during his May 2014

interview with the Secret Service. ID at 15. Further, he found that the appellant

had no reason to believe that the Secret Service would want to know about his

subordinate’s statement. Id. The agency asserts that the appellant was instructed

in his February 2014 interview with the Secret Service to report if “anything

related to the investigation surfaced.” PFR File, Tab 3 at 20-21. Further, it

observes that the subordinate in question transported the money mail. Id. at 21.

Thus, the agency argues that he immediately should have reported his

conversation with his subordinate to the Secret Service. Id. The agency also

asserts that the appellant should have volunteered this information during his

May 2014 interview with the Secret Service. Id.

¶36 Lack of candor is a “broad[] and . . . flexible concept whose contours and

elements depend on the particular context and conduct involved.” Fargnoli v.

Department of Commerce, 123 M.S.P.R. 330, ¶ 16 (2016) (quoting Ludlum v.

Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)). A lack of candor

charge may be based on “a failure to disclose something that, in the

circumstances, should have been disclosed in order to make a given statement

accurate and complete.” Id. (quoting same). Lack of candor requires proof that

the employee knowingly gave incorrect or incomplete information. Id., ¶ 17. We

agree with the administrative judge’s finding that, essentially, the appellant’s

failure to come forward with the information in question was not knowing. ID

at 15-16.

¶37 The administrative judge found that without having the investigator’s

additional background knowledge, the appellant had no indication from the

subordinate’s statement that he had done anything wrong or was involved in the

matter under investigation. ID at 15. Thus, the administrative judge found that

the statement of the subordinate “would not raise any suspicion or suggest a need

to make a report.” Id. We are not persuaded that the appellant knew the Secret

Service would find his subordinate’s statement significant merely because he

transported the money mail to the agency. HT at 35-36 (testimony of the Secret

Service special agent), 61-62 (testimony of the appellant’s coworker). In

particular, the Secret Service’s questions of the appellant during his two

interviews appear to have been focused on how he processed the money mail.

IAF, Tab 8 at 58-59, 80-82. There is no evidence that the special agents asked

about the transportation of the mail. Id. Under these circumstances, the

administrative judge correctly found that the agency did not prove this charge

because the appellant did not know that his subordinate’s statement had any

significance to the investigation. ID at 15-15; see Fargnoli, 123 M.S.P.R. 330,

¶ 18 (remanding because an administrative judge failed to make findings as to

whether the appellant knew that the information he gave was not true).

The administrative judge properly reduced the penalty to a 60-day

suspension.

¶38 Finally, the agency asserts that the administrative judge erred in mitigating

the removal to a 60-day suspension because of the nature and seriousness of all

four of the charges. PFR File, Tab 3 at 22. As set forth above, however, the

administrative judge correctly found that the agency did not prove three of the

charges. The agency also contends that, even assuming that the other charges are

not sustained, a demotion to a nonsupervisory position, along with the 60-day

suspension, is a more reasonable penalty for the sustained charge of Unauthorized

Use of a Government Vehicle because the appellant was a supervisor, who is held

to a higher standard of conduct than nonsupervisors. Id. at 22-23.

¶39 When, as here, the Board does not sustain all the charges, it will carefully

consider whether the sustained charges merit the penalty imposed by the agency.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 17 (2014). The

Board may mitigate the penalty imposed by the agency to the maximum penalty

that is reasonable in light of the sustained charges as long as the agency has not

indicated in either its final decision or in proceedings before the Board that it

desires that a lesser penalty be imposed for fewer charges. Id. As found by the

administrative judge, the deciding official did not testify as to what he thought

would be an appropriate penalty for the Unauthorized Use of a Government

Vehicle charge in the absence of the other charges. ID at 20; HT (Dec. 18, 2015)

at 127-75 (testimony of the deciding official). Moreover, the decision notice does

not indicate that a lesser penalty should be imposed for fewer sustained charges.

IAF, Tab 8 at 25-27. Thus, we find that the agency has shown no error in the

administrative judge’s determination that, in light of the appellant’s position as a

supervisor, his knowledge of the policies, and a warning he received from his

coworker against personal use of the vehicle that he disregarded, a penalty greater

than the statutory 30-day minimum suspension, but less than removal, was the

maximum reasonable penalty for the only sustained charge. ID at 20-21; see

31 U.S.C. § 1349(b) (requiring a minimum penalty of a 1-month suspension for

willful misuse of a Government passenger vehicle). Of particular note, the

appellant consistently had received ratings of “exceeds expectations” during his

12 years of service and had no prior discipline. 9 IAF, Tab 8 at 25, 39, 51; HT

(Dec. 18, 2015) at 139 (testimony of the deciding official); see Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305 (1981) (listing the employee’s

length of service, past performance, and disciplinary record as factors to be

considered in determining the appropriate penalty).

¶40 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).

ORDER

¶41 We ORDER the agency to cancel the removal and substitute in its place a

60-day suspension without pay and to restore the appellant effective June 23,

2015. 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.

The agency argues for the first time on review that the appellant may no longer be

able to meet the requirements of his position. PFR File, Tab 3 at 13-14; IAF, Tab 11

at 5-11. In particular, it indicates that the Secret Service must give him access to the

White House Complex and the Personnel Security Office must reinvestigate his security

clearance. PFR File, Tab 3 at 12-14. These matters are more appropriately raised in

any compliance proceedings, and we decline to address them here. See LaBatte v.

Department of the Air Force, 58 M.S.P.R. 586, 594 (1993) (finding an agency had

complied with the requirement that it restore the appellant by taking all steps necessary

toward reinstating his security clearance).

¶42 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.

¶43 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).

¶44 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 in 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).

¶45 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 out at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

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

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

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 10

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

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.

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. ____ , 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:

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. 11 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:

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.