Leonard English v. Small Business Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEONARD ENGLISH, JR., DOCKET NUMBERS 1

Appellant, DE-1221-16-0135-W-1

DE-1221-16-0136-W-1

v.

SMALL BUSINESS

ADMINISTRATION, DATE: February 3, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Leonard English, Jr., Aurora, Colorado, pro se.

Beverley E. Hazlewood, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

1

The administrative judge joined these appeals upon finding that doing so would

expedite their processing without adversely affecting the interests of either party.

English v. Small Business Administration, MSPB Docket No. DE-1221-16-0135-W-1,

Initial Appeal File, Tab 6 at 2; see 5 C.F.R. § 1201.36(a)(2).

2

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

FINAL ORDER

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

denied his requests for corrective action in these individual right of action (IRA)

appeals. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM t he initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant, a Surety Bond Guarantee Specialist, filed these IRA appeals

alleging that, in reprisal for his protected whistleblowing disclosures and other

protected activity, the agency decided not to include him in his office’s line of

succession and issued two letters of reprimand dated May 18, 2015, and July 20,

2015. English v. Small Business Administration, MSPB Docket No. DE-1221-16-

0135-W-1, Initial Appeal File (0135 IAF), Tab 1 at 4-6, Tab 29 at 2, Tab 33

at 4-5; English v. Small Business Administration, MSPB Docket No. DE-1221-16-

0136-W-1, Initial Appeal File, Tab 1 at 4-5. The appellant alleged that his

supervisor had excluded him from her line of succession, thereby excluding him

from the list of individuals designated to act for his supervisor in her absence, on

3

April 22, 2014, January 2, 2015, March 4, 2015, and September 29, 2015.

0135 IAF, Tab 28 at 11, Tab 33 at 5. The May 18, 2015 letter of reprimand

alleged that the appellant failed to make a decision or complete a review on a

bond guarantee application that was past the bid date. 0135 IAF, Tab 19 at 135.

The July 20, 2015 letter of reprimand, which found that the appellant had failed

to follow his supervisor’s instructions by failing to update his information in the

Emergency Notification System (ENS) and send his supervisor an email when

that task had been completed, had initially been proposed as a 5-day suspension

with an additional specification that was not sustained by the deciding official

who issued the letter of reprimand. 0135 IAF, Tab 7 at 30-33, Tab 19 at 127-28.

¶3 After finding that the Board had jurisdiction over the appeals and holding a

hearing, 0135 IAF, Tab 33, the administrative judge denied the requests for

corrective action, 0135 IAF, Tab 57, Initial Decision (ID) at 1, 24. The

administrative judge found that the appellant had engaged in activities protected

by 5 U.S.C. § 2302(b)(8)-(9), including an April 18, 2014 disclosure, a

November 25, 2014 IRA appeal, a May 2014 letter to a U.S. senator, and a

December 2014 complaint to the agency’s Inspector General (IG). ID at 9-11.

Nevertheless, he also found that, in those instances in which the appellant

established that a protected disclosure or activity was a contributing factor in a

personnel action, the agency established by clear and convincing evidence that it

would have taken the same actions in the absence of the disclosures or activity.

ID at 11-24.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The appellant does not challenge the administrative judge’s findings

regarding the protected disclosures and activity, nor does he address on review in

any persuasive way the administrative judge’s findings that only some of those

protected activities were contributing factors in only some of the personnel

actions at issue in this case. ID at 11-12, 16-18, 21-22 (finding, for example, that

4

only the appellant’s April 18, 2014 disclosure and his November 25, 2014 IRA

appeal were contributing factors in his May 18, 2015 letter of reprimand). 3

Instead, the appellant’s assertions focus primarily on his disagreement with the

administrative judge’s finding that the agency proved by clear and convincing

evidence that it would have taken the same actions in the absence of his protect ed

disclosures and activity. Petition for Review (PFR) File, Tab 1 at 4-6, 8, 12-24.

In this regard, the appellant asserts that the administrative judge did not properly

analyze the factors for determining whether the agency has met this burden. In

making this determination, the Board will consider all of the relevant factors,

including the following factors (Carr factors): (1) the strength of the agency’s

evidence in support of its action; (2) the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision;

and (3) any evidence that the agency takes similar actions against employees wh o

did not engage in such protected activity, but who are otherwise similarly

3

The appellant asserts that the initial decision is contradictory because the

administrative judge found both that his April 18, 2014 disclosure was and was not a

contributing factor in the February 20, 2015 proposal to suspend him for 5 days, which

the agency ultimately mitigated in its July 20, 2015 letter of reprimand. Petition for

Review (PFR) File, Tab 1 at 11. Based on the context of the separate analyses of the

proposed 5-day suspension and the resulting letter of reprimand, as well as what

appears to be a typographical error, we find that the administrative judge actually found

that the April 18, 2014 disclosure and November 2014 IRA appeal were contributing

factors in the February 20, 2015 proposed 5-day suspension, while the November 2014

IRA appeal and December 2014 IG complaint were contributing factors in the July 20,

2015 letter of reprimand. ID at 16-18.

The appellant also contends that agency officials who knew of his May 2014 letter to a

U.S. senator “probably” discussed the letter with the official who issued the May 18,

2015 letter of reprimand, PFR File, Tab 1 at 10-11, but he has not established any basis

for this speculation, nor has he shown any error in the administrative judge’s finding

that this official denied having such knowledge in his testimony at the hearing and there

was no evidence to the contrary. ID at 12; cf. Aldridge v. Department of Agriculture,

110 M.S.P.R. 21, ¶ 9 (2008) (holding that sworn statements that are not rebutted are

competent evidence of the matters asserted therein).

5

situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr v.

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 4

The appellant has not shown that the administrative judge erred when he found

that the evidence in support of the agency’s action s was strong.

¶5 The appellant contends that the agency’s evidence in support of its decision

to keep him out of the line of succession was not strong because, although his

supervisor testified that she “tries” to issue her line of succession on a quarterly

basis, there was no evidence to substantiate this testimony. PFR File, Tab 1

at 12. He thus implies that the timing of her issuance of the line of succession

determinations coincided with some of his protected disclosures and activity. Id.

¶6 The testimony identified by the appellant that his supervisor “tries” to issue

her line of succession on a quarterly basis suggests that this goal may not always

be attained, and any absence of corroborating evidence does not undermine the

supervisor’s otherwise unrebutted testimony that she tries to do so. In any event,

the administrative judge thoroughly addressed the supervisor’s testimony

regarding this alleged personnel action, finding it clear, logical, and forthright,

and thereby basing his determination of her credibility explicitly on her

demeanor. ID at 23. The administrative judge found that the supervisor had

decided not to include the appellant in her line of su ccession because, among

other things, he was not a top performer and had conduct issues. ID at 22-23. In

addition, she testified that the appellant’s applications had many errors, he

was not performing administrative duties as she expected, and his relationship

with team members deteriorated after he “started acti ng unprofessionally with his

4

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on these types of whistleblower issues. However, as a result of

changes initiated by the Whistleblower Protection Enhancement Act of 2012 , Pub. L.

No. 112-199, 126 Stat. 1465, extended for 3 years in the All Circuit Review Extension

Act, Pub. L. No. 113-170, 128 Stat. 1894, and eventually made permanent in the All

Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions

for judicial review of Board decisions in whistleblower reprisal cases with any circuit

court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

6

co-workers, refusing to help agents, confronting co-workers, and ignoring her.”

ID at 23. The Board defers to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observin g the

demeanor of witnesses testifying at a hearing; the Board will overturn such

determinations only when it has sufficiently sound reasons for doing so. See

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find

that this testimony, which the administrative judge found was credible based in

part on the witness’s demeanor, overcomes any lack of corroboration for a

quarterly line of succession goal or circumstantial evidence regarding the timing

of the actions.

¶7 The appellant also asserts that the agency’s evidence in support of its

May 18, 2015 letter of reprimand was not strong because he had engaged in that

type of misconduct on numerous occasions but had never before been disciplined.

PFR File, Tab 1 at 13. The administrative judge addressed this argument and

found it unpersuasive. The administrative judge found that, although the

appellant testified that he had, on numerous occasions, taken action on an

application on the next business day after the deadline date, his testimony was

“evasive” and he did not explain why he could permissibly leave work the day

that a bid date would pass without taking action on the underlying application,

plan to decline the application on the next day he was in the office, and tell no

one that the bid date would pass during his absence. ID at 13-14. The appellant

has not provided on review any further explanation regarding these matters, nor

has he alleged or shown that the agency knew that he had missed the deadline on

prior occasions or otherwise shown that the administrative judge erred when he

found that the evidence in support of this action was strong.

¶8 In addition, the administrative judge’s findings regarding the strength of the

agency’s evidence in support of the May 18, 2015 reprimand are based in part on

his observing the demeanor of the acting official. ID at 13. The appellant has not

7

established “sufficiently sound” reasons for overturning this credibility

determination, and we find no basis for disturbing these findings.

¶9 The appellant further contends that the misconduct underlying the July 20,

2015 letter of reprimand was the result of confusion. PFR File, Tab 1 at 14. The

administrative judge addressed this contention, finding that the appellant was

clearly on notice of the agency’s requirements because his supervisor had sent

him an email informing him that he needed to call into the office, rather than send

an email, when he would be absent due to illness. ID at 19-20. The appellant

has not explained how he remained confused after receiving this email and has

otherwise shown no error in this determination by the administrative judge.

¶10 The appellant also asserts that the evidence in support of this letter of

reprimand was not strong because the only evidence the agency submitted

showing that he had not updated his telephone number in the ENS was a

memorandum his first-level supervisor wrote on the same day she provided

testimony in an equal employment opportunity (EEO) proceeding. PFR File,

Tab 1 at 8. The administrative judge based his finding of strong evidence on the

testimony of the supervisor, which he found was not disputed. ID at 19. The

appellant’s assertion that this testimony was supported by, and consistent with, a

memorandum written by the supervisor corroborates that testimony. See Hillen v.

Department of the Army, 35 M.S.P.R. 453, 460 (1987).

The appellant has not shown that the administrative judge erred when he found

that the agency’s motive to retaliate was not strong.

¶11 The appellant asserts that the administrative judge did not fully consider all

of the reasons why the agency would be strongly motivated to retaliate against

him, including disclosures he made alleging an abuse of authority to a named

agency official between May 2014 and July 2015 and an EEO complaint he filed.

PFR File, Tab 1 at 4-5, 17. The appellant further contends that the administrative

judge ignored testimony and evidence showing a lack of good character,

inconsistencies, evasiveness, and bias on the part of the acting officials, including

8

the acting officials’ failure to consider mitigating factors in the decision to issue

the July 20, 2015 letter of reprimand and failure to follow standard operating

procedures (SOPs) in issuing the May 18, 2015 letter of reprimand. Id. at 5, 7-10,

17-20.

¶12 The appellant’s contention that the administrative judge failed to consider

other reasons for the agency’s alleged motive to retaliate is based upon alleged

protected disclosures and activity that were not identified as issues in this case.

0135 IAF, Tab 33 at 1-4, Tab 48 at 3. His failure to object to these rulings below,

however, precludes him from doing so on review. 0135 IAF, Tab 2 at 6, Tab 33

at 1 n.1; see, e.g., Crowe v. Small Business Administration, 53 M.S.P.R. 631, 635

(1992) (finding that the appellant’s failure to object to the ex clusion of an issue in

response to an order allowing him to do so prevents him from raising the issue on

review). Although the appellant contends that the administrative judge ignored

certain testimony and evidence, his failure to mention all of the testimony and

evidence in this case does not mean that he did not consider it. See Mithen v.

Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015), aff’d,

652 F. App’x 971 (Fed. Cir. 2016). In any event, we have considered the

appellant’s arguments and find that they do not demonstrate error in the

administrative judge’s determination that any motive to retaliate was slight or

moderate, nor do they overcome the ultimate finding that the agency proved by

clear and convincing evidence that it would have taken the same actions in

absence of the disclosures and protected activity. ID at 12-16, 18-24. In this

regard, we note that the acting official considered mitigating factors, including

the appellant’s performance, his 7 years of Federal service, and the lack of

notoriety of the offense, in mitigating the proposed 5-day suspension to a July 20,

2015 letter of reprimand, and also indicated that she considered the appellant’s

written reply and the relevant factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981), in considering the

appropriateness of the penalty. 0135 IAF, Tab 19 at 127, 131-32. The appellant

9

does not identify on review the procedures he believes the agency did not follow

when it issued the May 18, 2015 letter of reprimand. PFR File, Tab 1 at 7.

¶13 The appellant also asserts that an agency human resources specialist did not

have a file for the May 18, 2015 letter of reprimand, which the appellant claims

suggests that the acting official did not intend to issue the letter until he signed a

Merit Systems Protection Board mediation agreement during the morning of

May 18, 2015. PFR File, Tab 1 at 8. After the acting official issued the May 18,

2015 letter of reprimand, the appellant asked the human resources specialist for

the “evidence file.” 0135 IAF, Tab 11 at 24. The human resources specialist

informed the appellant on May 19, 2015, that he did not have an “evidence file”

and that the acting official “issued the letter of reprimand based on his

observations as a supervisor.” Id. We find that the appellant has not shown that

the absence of an “evidence file” in the possession of the human resources

specialist, or any other evidence of coordination between the acting official and

the human resources specialist, suggests a stronger motive to retaliate for this

protected activity than that found by the administrative judge, which was a

“moderate motive to retaliate against the appellant for his IRA appeal.” ID at 15.

Moreover, he has not explained why the apparently voluntary signing of a

mediation agreement, as opposed to any other action of the appellant such as his

filing of a Board appeal, would trigger a retaliatory motive on the part of this

particular acting official. Although the appellant contends that the letters of

reprimand related to routine office matters that the agency previously had not

counseled him about, PFR File, Tab 1 at 8, he has not alleged or shown that the

agency was aware of him engaging in such misconduct in the past. In any event,

the administrative judge found that his misconduct was serious enough to have

caused “a company not to bid on a project and required another specialist to have

to re-underwrite the application,” ID at 12, the acting official took remedial

action when another employee allowed a bid date to pass on an application, and

the Board has held that a failure to follow supervisory instructions is a serious

10

charge, see Von Muller v. Department of Energy, 101 M.S.P.R. 91, ¶ 23, aff’d,

204 F. App’x 17 (Fed. Cir. 2006), and modified on other grounds by Lewis v.

Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), overruled on other

grounds by Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 9. Thus, we find that

the appellant has not shown that the misconduct at issue in his letters of

reprimand was “routine” or unworthy of discipline.

¶14 The appellant further contends that an agency official who did not take any

of the personnel actions at issue in this case, but who was purportedly involved in

responding to his IG complaint, 0135 IAF, Tab 48 at 5, was “evasive” in

explaining why he did not conduct a “proper” investigation into the appellant’s

IG complaint and did not follow SOPs when the appellant raised an allegation of

a hostile work environment in October 2014, PFR File, Tab 1 at 9-10. The

appellant does not, however, specify why he believes the testimony of this

official was evasive. See Tines v. Department of the Air Force, 56 M.S.P.R. 90,

92 (1992) (holding that a petition for review must contain sufficient specificity to

enable the Board to ascertain whether there is a serious evidentiary challenge

justifying a complete review of the record); Weaver v. Department of the Navy,

2 M.S.P.R. 129, 133 (1980) (finding that before the Board will undertake a

complete review of the record, the petitioning party must explain why the

challenged factual determination is incorrect and identify the specific evidence in

the record which demonstrates the error), review denied, 669 F.2d 613 (9th Cir.

1982) (per curiam). Thus, he has not established that any testimony this official

provided was not credible. In any event, the administrative judge did not rely on

any testimony from this individual in his analysis of the issues, and the appellant

has not alleged or shown that this individual was motivated to retaliate against

him on the basis of his protected disclosures and activity and influenced the

acting officials in this case.

¶15 The appellant asserts that the agency had a motive to retaliate for his

April 18, 2014 disclosure that a coworker abused time and attendance

11

requirements because the acting officials either hired the coworker or treated him

as a “preferred” employee. PFR File, Tab 1 at 17-18. The administrative judge

thoroughly addressed any motive to retaliate for this disclosure and found, based

on his assessment of the demeanor of the acting officials during their testimony,

that there was no evidence that anyone was embarrassed, implicated, or

inconvenienced by the disclosure, and that only a slight motive to retaliate

existed. ID at 14-15, 20-21, 23-24; see Haebe, 288 F.3d at 1301. We have found,

however, that those responsible for the agency’s performance overall may well be

motivated to retaliate even if they are not directly implicated by the disclosures,

as the criticism reflects on them in their capacities as managers and employees.

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65; Smith v.

Department of the Army, 2022 MSPB 4, ¶¶ 28-29. Nonetheless, to the extent the

acting officials may have harbored retaliatory animus against the appellant

because of possible concerns that the conduct that the appellant disclosed

reflected badly on the agency, we find that any motive to retaliate was slight.

The appellant has not shown that the fact that the acting officials had hired the

coworker created a motive on the part of the acting official s to retaliate for the

disclosure, nor has he identified evidence in the record supporting his claim that

the coworker was somehow “preferred.”

The appellant has not shown that the administrative judge erred in his analysis of

Carr factor three.

¶16 The appellant asserts on review that the administrative judge ignored

similarly situated employees who were not whistleblowers and who were not

disciplined in his analysis of the third Carr factor. PFR File, Tab 1 at 4, 22-23;

see Carr, 185 F.3d at 1323. In this regard, the appellant asserts that his

supervisor was similarly situated to him because she “engaged in many acts of

misconduct and violated many SOPs and agreements” without being disciplin ed,

and a coworker who was not a whistleblower was not disciplined “on the same

12

request I got the letter of reprimand for.” PFR File, Tab 1 at 22-23. In support of

this assertion the appellant references his Exhibit E. Id. at 23.

¶17 The administrative judge found that Carr factor three was neutral because

the agency did not identify comparators. ID at 15-16, 21, 24. The appellant has

shown no error in this finding by the administrative judge. To the extent that the

appellant contends that the agency did not take disciplinary action against

similarly situated employees who did not make protected disclosures or engage in

protected activity, his allegation that his supervisor violated SOPs and agreements

does not suggest that she engaged in misconduct similar to that which the agency

proved in this case. Moreover, the Exhibit E referenced by the appellant in his

petition for review does not support his contentions. Rather, it includes

correspondence between the appellant and the agency regarding his own May 18,

2015 letter of reprimand. 0135 IAF, Tab 11 at 2, 33-55. At best, this exhibit

includes an assertion by the appellant that he has let files sit in the queue for an

extra day in the past and that “other specialists do it too.” Id. at 33. The exhibit

includes no further details regarding this bare allegation of misconduct by other

agency employees. See Carr, 185 F.3d at 1326 (explaining that, for an employee

to be considered similarly situated to an individual who is disciplined, it must be

shown that the conduct and the circumstances surrounding the conduct of the

comparison employee are similar to those of the disciplined individual).

¶18 The appellant further contends that, although the administrative judge found

that a program support specialist was removed from processing applications when

she missed a bid date, that employee was not similarly situated to him because he

did not miss a bid date but merely did not decline a request fast enough, the

program support specialist was probably a GS-9 employee working outside her

job description, and she was simply returned to her regular duties and did not

receive a letter of reprimand. PFR File, Tab 1 at 21. We find that the

administrative judge committed no error in his analysis of this matter. The

administrative judge found that evidence regarding the program support specialist

13

did not apply to Carr factor three because the record did not reflect whether that

individual made whistleblowing disclosures. ID at 15. Instead, the

administrative judge found that any evidence regarding the agency’s actions

affecting the program support specialist supported the acting official’s testimony

that he does not tolerate employees missing bid dates, and therefore supported a

determination that the evidence in support of the action was strong . ID at 15-16.

¶19 Because it is the agency’s burden of proof, when the agency fails to

introduce relevant comparator evidence, the third Carr factor cannot weigh in

favor of the agency. Soto, 2022 MSPB 6, ¶ 18; see Rickel v. Department of the

Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022) (“The lack of evidence on the third

Carr factor appears neutral[.]”) (internal citation omitted). We agree with the

appellant that, in some cases, an absence of evidence regarding Carr factor three

“may well cause the agency to fail to prove its case overall.” PFR File, Tab 1

at 20. If the first two Carr factors are only supported by weak evidence, the

failure to present evidence of the third Carr factor may prevent the agency from

carrying its overall burden. Smith, 2022 MSPB 4, ¶ 30; see Miller v. Department

of Justice, 842 F.3d 1252, 1262-63 (Fed. Cir. 2016) (where an agency presented

little or weak evidence for the first two Carr factors, the lack of Carr factor three

evidence “if anything[] tends to cut slightly against the government”).

¶20 Nevertheless, we agree with the administrative judge that the absence of

such evidence in this case does not warrant a finding that the agency did not meet

its burden. ID at 15-16, 21, 24. As found by the administrative judge, the

evidence in support of the action was quite strong, and any motive to retaliate was

slight or moderate. ID at 12-16, 18-24. Thus, we find that the appellant has

shown no error in the administrative judge’s determination that the agency proved

by clear and convincing evidence that it would have taken the same action s in the

absence of his disclosures and protected activity.

14

¶21 Accordingly, we deny the petition for review and affirm the

initial decision. 5

NOTICE OF APPEAL RIGHTS 6

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 carefu lly 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).

5

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

6

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 w arrants 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

16

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

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. 7 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 particu lar

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

7

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.

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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/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.