Ann Herringdine v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANN M. HERRINGDINE, DOCKET NUMBER

Appellant, AT-0831-17-0179-I-1

v.

OFFICE OF PERSONNEL DATE: January 24, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thomas M. Leveille, Esquire, Knoxville, Tennessee, for the appellant.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

affirmed the final decision by the Office of Personnel Management (OPM)

finding that she was not eligible for an increased survivor annuity. Generally, we

grant petitions such as this one only in the following circumstances: the initial

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

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

2

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 . Except as

expressly MODIFIED by this final order to supplement the administrative judge’s

analysis of the appellant’s claim that her late husband’s election was invalid on

the basis of mental incompetence and to address her claim that her consent to his

election resulted from fraud in the inducement, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant’s late husband retired from the U.S. Postal Service under the

Civil Service Retirement System (CSRS) effective November 2, 2011. Initial

Appeal File (IAF), Tab 6 at 54. On her husband’s application for retirement,

Standard Form (SF) 2801, he chose a reduced annuity with a partial survivor

annuity for the appellant equal to 55 percent of $22 per year. 2 Id. at 45, 48. The

appellant signed a “Spouse’s Consent to Survivor Election” form, SF 2801-2,

before a notary public on October 7, 2011, indicating her consent to her

husband’s election of a partial survivor annuity for her of 55 percent of $22 per

2

The amount elected by the appellant’s husband, $22 per year, is the lowest dollar base

that may be elected for a survivor annuity. OPM Benefits Administration Letter,

No. 00-102 (Mar. 8, 2000). Fifty-five percent of $22 per year provides a survivor

benefit of $1 per month and allows the surviving spouse to continue Federal Employee s

Health Benefits coverage. Id.

3

year. 3 Id. at 48. The appellant’s husband passed away on April 21, 2015 , and she

filed an application for death benefits with OPM. Id. at 18-23. OPM approved

the appellant’s application and began paying her a survivor annuity benefit in the

amount of $5 per month. 4 Id. at 6, 14.

¶3 On June 19, 2015, the appellant requested that OPM review its decision

regarding the amount of her monthly survivor annuity benefit. Id. at 16-17. She

stated that she was “totally shocked” by the amount of her monthly survivor

annuity and that she would not have signed the consent form if someone had

explained to her that she would only receive $5 per month after her husband’s

death. Id. at 16. She stated that her husband told her that, in the event of his

death, she would receive a gross monthly annuity of $2,647, as indicated on a

September 9, 2011 annuity estimate printout, or about half of his current monthly

annuity benefit. Id. at 16, 57. She further stated that her husband must not have

understood the effect of his election and that, in the years leading up to his

retirement and thereafter, he suffered from a number of medical conditions and a

“deteriorated” mental status. Id at 16-17. In a March 1, 2016 initial decision,

OPM found that, given the joint election of the appellant and her husband at the

time of his retirement, the rate of $5 per month was correct. Id. at 12.

¶4 The appellant requested reconsideration of OPM’s decision , again stating

that her late husband told her she would receive about half of his current monthly

gross annuity benefit after his death and that he suffered from a number of

3

The record also contains a signed and notarized SF 2801-2 dated September 16, 2011,

indicating the appellant’s consent to her husband’s election of a partial survivor annuity

in the amount of 55 percent of $22 per year. IAF, Tab 3, Exhibit 2 at 5. It appears that

the appellant’s late husband also checked the option for an insurable interest survivor

annuity on this form, which he then covered with his initials. Id. Although OPM

mentioned the September 16, 2011 form in its March 1, 2016 initial decision, IAF,

Tab 6 at 12, it based its reconsideration decision on the SF 2801 -2 executed on

October 7, 2011, id. at 6.

4

The record reflects that the appellant’s monthly annuity increased to $6 in

December 2016. IAF, Tab 6 at 15. It is unclear, however, why the appellant receives

$5 or $6 per month, given that 55 percent of $22 per year amounts to $1 per month.

4

physical and mental conditions around the time of his retirement. IAF, Tab 6

at 11. She further stated that her late husband showed her a retirement plan report

dated September 30, 2011, showing a gross monthly survivor annuity benefit of

$2,647, and that she signed the spousal consent form “without questioning how it

was computed.” Id. In a final decision dated November 15, 2016, OPM affirmed

its initial decision, stating that the appellant freely consented to her husband’s

election when she signed the SF 2801-2 on October 7, 2011, and that OPM had no

record that she contested her consent at any time between the date she signed it

before a notary and her husband’s death. Id. at 6-8. OPM further noted that it

had no record showing that her late husband was incompetent at the time of his

retirement and that, although he could have changed his election within

18 months of making it, OPM had no record of him attempting to do so. Id.

¶5 The appellant timely appealed OPM’s final decision to the Board, arguing

as follows: she was “misinformed as to what [her] survivor benefit would be by

information [shown to her by her] husband”; her husband did not understand his

election due to his medical conditions; and she signed the spousal consent form

believing that, in the event of her husband’s death, she would receive half of his

monthly annuity benefit. IAF, Tab 1 at 3. The appellant submitted medical

records showing that, from 2010 through 2013, her husband suffered from a

number of serious medical conditions and underwent several surgeries, including

amputation of one of his toes followed by amputation of his entire left forefoot.

IAF, Tab 3, Exhibit 3. She also submitted a letter from her husband’s former

supervisor opining that the appellant’s husband “was becoming mentally

challenged at the end of 2010 . . . especially at retirement.” IAF, Tab 3,

Exhibit 8. In another submission, the appellant stated that “[y]es, I did sign the

retirement papers without my [sic] questioning the figures simply based on my

belief that what I was shown and told to be the truth. I would never h ave signed

anything had I known that all I would be eligible for was $5.” IAF, Tab 8.

5

¶6 After holding the appellant’s requested hearing, the administrative judge

issued an initial decision finding that the appellant’s consent was valid and that

OPM met its burden of showing that it sent the required notice to the appellant’s

late husband regarding his option to provide or increase a spouse’s survivor

annuity within 18 months of his retirement. IAF, Tab 11, Initial Decision (ID).

She further found that the evidence did not support the appellant’s assertion that

her husband was mentally incompetent when he retired. ID at 4 n.3. Thus, she

affirmed OPM’s final decision. ID at 7.

¶7 The appellant, now represented by counsel, has filed a petition for review of

the initial decision arguing that she and her husband did not make a valid joint

election of a partial survivor annuity because of the following: (1) her husband

was mentally incompetent at the time of his election; (2) her consent was induced

by fraud; and (3) the spousal consent form was confusing and fails to meet the

notice and consent requirements of the Spouse Equity Act. Petition for Review

(PFR) File, Tab 1. The agency has responded in opposition to the ap pellant’s

petition for review. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The surviving spouse of a CSRS retiree is entitled to a survivor annuity in

the amount of 55 percent of the retiree’s annuity unless the retiree elected not to

provide a survivor annuity or to provide only a partial survivor annuity, and the

spouse consented to the election in writing. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1);

Cerilli v. Office of Personnel Management, 119 M.S.P.R. 404, ¶ 5 (2013);

5 C.F.R. § 831.614. A retiree may, within 18 months after retirement, choose to

elect a survivor annuity for the spouse to whom he was married at retireme nt if he

did not previously do so or to increase the size of such an annuity. 5 U.S.C.

§ 8339(o)(1); Cerilli, 119 M.S.P.R. 404, ¶ 5; 5 C.F.R. § 831.622(b)(1).

¶9 Here, it is undisputed that the appellant’s late husband timely elected a

partial survivor annuity equal to 55 percent of $22 per year for the appellant and

6

that she signed a SF 2801-2 before a notary public on October 7, 2011, indicating

her consent to his election. IAF, Tab 6 at 45, 48. In addition, the appellant has

not challenged, and we discern no basis to disturb, OPM’s finding that the

appellant’s late husband did not seek to amend his survivor annuity election

during the 18 months following his retirement, despite being notified of his

opportunity to do so. 5 Id. at 7, 24-31. As noted above, however, the appellant

argues on review that she is entitled to an increased survivor annuity because she

and her late husband did not make a valid joint election of a partial survivor

annuity. PFR File, Tab 1.

¶10 The U.S. Court of Appeals for the Federal Circuit has held that t he

voluntary signing of a Government form for the purpose of evidencing agreement

with the terms of the form is binding, and the Government is entitled to rely on

the act of signing absent a showing of fraud, duress, or mental incompetence .

Braza v. Office of Personnel Management, 598 F.3d 1315, 1319 (Fed. Cir. 2010)

(en banc); Collins v. Office of Personnel Management, 45 F.3d 1569, 1573 (Fed.

Cir. 1995). The appellant, as the applicant for a survivor annuity and as the

individual seeking to change the annuity agreement of record , has the burden to

show her entitlement to the benefit she seeks by preponderant evidence. See

Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir.

1986); Dombeck v. Office of Personnel Management, 43 M.S.P.R. 43, 45-46

(1989). A preponderance of the evidence is that degree of relevan t evidence that

a reasonable person, considering the record as a whole, would accept as sufficient

5

OPM has a statutory obligation to notify annuitants annually that they have 18 months

after retirement to provide or increase a spouse’s survivor annuity. 5 U.S.C.

§ 8339(o)(6); Cerilli, 119 M.S.P.R. 404, ¶ 6. OPM bears the burden of proving that the

notice was sent as well as proving the contents of the notice. Cerilli, 119 M.S.P.R. 404,

¶ 6. The administrative judge found, and the appellant does not dispute on review, that

OPM met its burden of showing that it sent the required notice to the appellant’s late

husband regarding his option to change his survivor annuity election within 18 months

of his retirement. ID at 5-6. We have reviewed the record and discern no basis to

disturb this finding. See IAF, Tab 6 at 24-31.

7

to find that a contested fact is more likely to be true than untrue. 5 C.F.R.

§ 1201.4(q).

The appellant has not shown by preponderant evidence t hat her late husband was

mentally incompetent as to render his election invalid.

¶11 In the initial decision, the administrative judge found that the record

evidence was insufficient to establish that the appellant’s late husband was

mentally incompetent at the time of his retirement and survivor annuity election.

ID at 4 n.3. The appellant challenges this finding on review, arguing that the

administrative judge and OPM gave her argument “short shrift.” PFR File, Tab 1

at 12-16. She further argues that the record evidence establishes that her late

husband was mentally incompetent at the time of his survivor annuity election

and urges the Board to find that his election was not effective . Id. For the

reasons that follow, we agree with the administrative judge’s determination that

the appellant has not met her burden to show that her late husband’s survivor

annuity election was invalid on the basis of mental incompetence. However, we

modify the initial decision consistent with this section to further address the

appellant’s argument and the medical evidence.

¶12 Annuity elections are only valid if made by mentally competent individuals.

Dombeck, 43 M.S.P.R. at 45-46. Although such competency is presumed absent

challenge, the spouse can demonstrate that the annuitant lacked the requisite

capacity to make a valid election. Pooler v. Office of Personnel Management,

23 M.S.P.R. 51, 53 (1984). The relevant standard for mental incompetence is “an

inability to handle one’s personal affairs because of either physical or mental

disease or injury.” Rapp v. Office of Personnel Management, 483 F.3d 1339,

1341 (Fed. Cir. 2007); Magelitz v. Office of Personnel Management,

118 M.S.P.R. 472, ¶ 11 (2012). The Board requires medical evidence to

substantiate a claim of mental incompetence. See Thieken v. Office of Personnel

Management, 56 M.S.P.R. 192, 194, aff’d, 11 F.3d 1074 (Fed. Cir. 1993) (Table).

8

¶13 Here, as noted above, the appellant submitted medical evidence sho wing

that, in 2010, her husband had one of his toes amputated due to a diabetic ulcer

and later had his entire left forefoot amputated. IAF, Tab 3, Exhibit 3 at 2-8.

The records further show that, from 2010 through 2013, he suffered from type 2

diabetes, coronary artery disease, hypertension, sleep apnea, arthritis, kidney

disease, malnutrition, anemia, possible seizures, and light -headedness. Id. at 4-5,

10, 13, 16, 23, 25. In a February 28, 2012 consultation report, the medical

provider indicated that the appellant’s husband was hospitalized due to an acute

kidney injury following a “two day history of progressive changes in mental

status with predominant agitation.” Id. at 9-10. An August 15, 2012 mental

capacity assessment indicates, however, that he could “manage benefits in [his]

own best interest” and did not have any limitations in understanding and memory,

sustained concentration and persistence, adaptation, or social interaction. Id.

at 17-22.

¶14 The appellant also submitted a September 8, 2014 Social Security

Administration (SSA) decision finding her late husband disabled as of

November 1, 2011. IAF, Tab 3, Exhibit 4 at 8-15. The decision thoroughly

discussed his medical conditions and determined that his coronary artery dise ase,

end stage renal disease with dialysis, and insulin-dependent diabetes with

retinopathy and neuropathy resulting in amputation of toes on the left foot were

“severe.” Id. at 10. The decision noted that his primary care physician

prescribed him Sertraline, which was “effective in controlling [his] anger and

mood.” Id. at 12.

¶15 In addition, as noted above, the appellant submitted a letter from her

husband’s former supervisor in which he opined that the appellant’s late husband

was becoming “mentally challenged” in 2010. IAF, Tab 3, Exhibit 8. He further

indicated that he did “not think that [the appellant’s late husband] was mentally

capable of making a decision of such an important nature as properly thinking

9

through and signing his retirement paperwork [and that] in his ‘right mind’ he

would not have denied [the appellant] the full benefit of a spousal annuity.” Id.

¶16 Although it is clear that the appellant’s late husband suffered from a number

of serious medical conditions in the years before and after his retirement, the

references in the record to his mental health issues —namely, that he suffered

from a 2-day period of “progressive changes in mental status with predominant

agitation” in 2012 and had mood and anger issues that were controlled with

medication—do not establish that he could not handle his personal affairs during

the relevant period. See Rapp, 483 F.3d at 1341. To the contrary, the August 15,

2012 mental capacity assessment specifically indicates that he could manage

benefits in his own best interest. IAF, Tab 3, Exhibit 3 at 19. Absent any

medical evidence showing that the appellant’s late husband was mentally

incompetent when he elected a partial survivor annuity in October 2011 or at any

time during the following 18 months, the subjective opinions of the appellant and

her late husband’s former supervisor that he was mentally incompetent are

unpersuasive. See Thieken, 56 M.S.P.R. at 194. Accordingly, we find no basis to

disturb the administrative judge’s determination that the appellant’s late

husband’s survivor annuity election may not be set aside on the basis of mental

incompetence.

The appellant has not shown by preponderant evidence that her consent to her late

husband’s election is invalid on the basis of fraud in the inducement.

¶17 The appellant next argues that, if her late husband was not mentally

incompetent, then he obtained her consent to his election to a partial annuity to

receive an increased annuity during his lifetime through fraud in the inducement

by assuring her that she would receive about half of his monthly annuity benefit

in the event of his death. PFR File, Tab 1 at 18-22. Although the appellant

invokes the term “fraud in the inducement” for the first time on review, she

asserts that she “clearly raised” this argument below when she alleged, among

other things, the following in her Board pleadings: her late husband showed her

10

the paperwork reflecting that she would receive a survivor annuity in the amount

of $2,647 per month and told her that she would receive approximately half of his

monthly annuity benefit as a survivor annuity; she received incorrect information

and was led “to believe that she would be taken care of with his ongoing spousal

annuity payments in the event of his death”; she felt she was greatly misled as to

her benefits; and she was given “misinformation” about what she would receive

in the event of her husband’s death. Id. at 18-20. We agree that she sufficiently

raised this argument below and so we consider it on review. See Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); IAF, Tabs 1, 3, 8. For

the reasons that follow, however, we find that the appellant has not shown that

her consent to her late husband’s election was invalid on the basis of fraud in the

inducement.

¶18 As stated above, the clear statutory language provides that the surviving

spouse of a CSRS annuitant is entitled to an annuity equal to 55 percent of his

annuity unless, at the time of his retirement, the annuitant elected to provide no

survivor annuity or a partial survivor annuity, and the spouse consented to the

election in writing. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1); 5 C.F.R. § 831.614.

Thus, the relevant inquiry in determining whether the appellant met her burden of

proving her entitlement to an increased survivor annuity benefit is whether she

effected a valid waiver of her right to one when she consented in writing to her

husband’s election of a partial annuity in the amount of 55 percent of $22 per

year. See Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 10

(2009). Although a “freely made choice” concerning a survivor annuity is not

voidable on the basis of a unilateral mistake, a waiver of annuity benefits may be

set aside as invalid if it resulted from fraud. See Braza, 598 F.3d at 1320;

Steele v. Office of Personnel Management, 57 M.S.P.R. 458, 464 (1993), aff’d,

50 F.3d 21 (Fed. Cir. 1995) (Table).

¶19 “Fraud in the inducement” is defined as “occurring when a

misrepresentation leads another to enter into a transaction with a false impression

11

of the risks, duties, or obligations involved; an intentional misrepresentation of a

material risk or duty reasonably relied on, thereby injuring the other party without

vitiating the contract itself.” Wofford v. Department of Justice, 115 M.S.P.R.

468, ¶ 7 (2010) (quoting Black’s Law Dictionary 671 (10th ed. 1999)). To

establish misrepresentation, the appellant must show that a reasonable person

would have been misled by the misinformation. Armstrong v. Department of the

Treasury, 110 M.S.P.R. 533, ¶ 12 (2009), aff’d in part, vacated in part, 591 F.3d

1358 (Fed. Cir. 2010).

¶20 Here, even if the appellant’s late husband intentionally misled her regarding

the effect of his election and her consent thereto, we cannot find that a reasonable

person would have been misled by the misinformation as to render her consent

invalid on the basis of fraud. The SF 2801-2, which the appellant signed before a

notary public on September 16, 2011, and October 7, 2011, is clear on its face

and sufficiently informed her of the effect of consenting to her late husband’s

election to provide her a partial annuity in the amount of 55 percent of $22 per

year. 6 IAF, Tab 3, Exhibit 2 at 5, Tab 6 at 48; see Braza, 598 F.3d at 1319-20

(holding that a prior version of SF 2801-2 “provides sufficient notice to alert

readers to its consequences upon reasonable review and is explicit enough for the

act of signing the form to evidence agreement with the terms of the form ”).

Although the appellant was shown a printout reflecting that she would receive a

6

Specifically, the SF 2801-2 states in the instructions section that “[i]f you are married

and you do not elect a reduced annuity to provide a maximum survivor annuity for your

current spouse, complete Part 1.” IAF, Tab 6 at 48. The appellant’s late husband filled

out Part 1, electing the third option—“[a] partial survivor annuity for my current spouse

equal to 55% of $22.00 a year.” Id. Part 2 of the form indicates that it is to be

completed by the current spouse of the retiring employee and provides as follows: “I

freely consent to the survivor annuity election described in Part 1 . . . I also understand

that my consent is final (not revocable).” Id. Part 3 was completed by a notary public

who certified that the appellant presented identification, signed the form, and

acknowledged that her consent was freely given. Id. The general information section

of the form further provides that “[t]he law requires that a retiring, married employee

must elect to provide a survivor annuity for a current spouse unless the current spouse

consents to some other election by signing this form.” Id. (emphasis in original).

12

surviving spouse gross monthly annuity of $2,647, the printout—labeled “annuity

estimate as of pay period 18 of 2011”—clearly indicates it is an estimate. IAF,

Tab 1 at 11. Therefore, we find that the appellant has not shown that her consent

to her husband’s election was invalid on the basis of fraud in the inducement.

The appellant has not established any other basis to find that her consent to her

late husband’s election of a partial survivor annuity was invalid.

¶21 The appellant also argues on review that the SF 2801-2 was confusing and

failed to meet the notice and consent requirements of the Spouse Equity Act.

PFR File, Tab 1 at 22-26. Although she alleged below that she did not understand

the effect of giving her consent to her late husband’s election and that it was not

sufficiently explained to her, she did not challenge the language of the form

itself. IAF, Tabs 1, 3, 8. Therefore, we need not consider this argument raised

for the first time on review. See Cerilli, 119 M.S.P.R. 404, ¶ 11; Banks,

4 M.S.P.R. at 271. Nonetheless, as discussed above, we find that the SF 2801-2

sufficiently placed the appellant on notice of the consequence of giving her

consent to her husband’s election of a partial survivor annuity in the amount of

55 percent of $22 per year. IAF, Tab 6 at 48; see Braza, 598 F.3d at 1319-20.

Moreover, we find no merit to her argument that the SF 2801-2 falls short of any

notice and consent requirements contained in the Civil Service Retirement Spouse

Equity Act of 1984, Pub. L. No. 98-615 § 2, 98 Stat. 3195. That the appellant

signed the SF 2801-2 without reading it or without understanding it, instead

relying on her late husband’s assurances, “does not release her from the binding

effect of the waiver under controlling law” and does not invalidate her waiver of

her entitlement to a full survivor annuity. See Braza, 598 F.3d at 1321.

¶22 The appellant further argues that her late husband’s severe health issues and

the likelihood that his death “would occur relatively quickly” demonstrate “the

absolute absurdity of a knowing consent to a survivor annuity of $1.00 per

month.” PFR File, Tab 1 at 21. Although we sympathize with the appellant’s

situation, neither the Board, nor OPM, may grant retirement benefits on the basis

13

of equitable considerations when granting such benefits is not otherwise

permitted by law. See Office of Personnel Management v. Richmond,

496 U.S. 414, 416 (1990); Hamilton v. Office of Personnel Management,

69 M.S.P.R. 690, 694 (1996). Therefore, we find no basis to disturb the

administrative judge’s determination that OPM’s reconsideration decision must

be affirmed.

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within t he 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

7

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

14

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 partic ular

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

15

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 thei r 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 E mployment

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, th en 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

16

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

8

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

17

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the li nk below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.