Opinion

Elizabeth Emond v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Aug 4, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELIZABETH A. EMOND, DOCKET NUMBER

Appellant, DC-831M-12-0383-A-1

OFFICE OF PERSONNEL DATE: August 4, 2022

MANAGEMENT,

Agency,

and

JANICE BURNS,

Intervenor.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John J. Rigby, Esquire, Arlington, Virginia, for the appellant.

Cynthia Reinhold, Washington, D.C., for the agency.

Rebecca Wade, Esquire, Alexandria, Virginia, for the intervenor.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

FINAL ORDER

¶1 The agency has filed a petition for review of the addendum initial decision,

awarding the appellant attorney fees in the amount of $105,568.80, sought in

connection with her appeal in which she challenged decisions of the Office of

Personnel Management (OPM) that she had been overpaid in former spouse

survivor annuity benefits and that she was not entitled to waiver of collection of

the overpayment. For the reasons discussed below, we GRANT OPM’s petition

for review in part and AFFIRM the addendum initial decision AS MODIFIED,

reducing the award to $85,047.45. Except as expressly MODIFIED by this Final

Order, we AFFIRM the addendum initial decision.

BACKGROUND

¶2 When her former spouse, Mr. Burns, died in 2008, the appellant sought a

survivor benefit based on his Federal service and pursuant to a final decree of

divorce entered into on March 24, 1989, awarding her a for mer spouse retirement

annuity. Emond v. Office of Personnel Management, MSPB Docket

No. DC-831M-12-0383-I-1, Initial Appeal File (I-1 IAF), Tab 4 at 96. OPM

honored the court order and granted the appellant a former spouse survivor

annuity under the Civil Service Retirement System. Id. at 92. On the same day,

OPM advised Mr. Burns’ mother that she was not eligible for survivor benefits as

a result of her son’s death because the appellant, as a former spouse, was entitled

to monthly annuity payments. Id. at 69. The executor of Mr. Burns’ estate

subsequently submitted a certified copy of a final decree of divorce between the

appellant and Mr. Burns, also entered into on March 24, 1989, which differed

from the decree the appellant had submitted in that it did not contain any

language awarding the appellant a survivor annuity, id. at 71-76, and, based on

that decree, Mr. Burns’ mother again sought benefits, id. at 68. On May 26,

2010, OPM issued one decision advising the appellant that, based on the

additional documentation it had received, she was not eligible for a former spouse

survivor annuity, id. at 54, and another stating that, accordingly, she had been

overpaid in the amount of $62,739.96, I-1 IAF, Tab 1 at 65-66. In its

reconsideration decision, OPM explained that, based on the certified copy of the

final divorce decree it had received from the court, which did not award the

appellant a survivor annuity, she must return to the Retirement Fund all monies

paid her, I-1 IAF, Tab 4 at 10, and further that, unless she could present

indisputable evidence that the court order she provided was auth entic, OPM could

not honor it, id. at 12. OPM also advised the appellant that she was not totally

without fault in the matter and that, therefore, she did not meet the eligibility

requirements for waiver of collection of the overpayment. Id.

¶3 On appeal, the appellant argued that the copy of the divorce decree she

submitted was certified on August 6, 2002, and that there was no information to

indicate that it was in any way invalid. I-1 IAF, Tab 1 at 17. The administrative

judge agreed and reversed OPM’s reconsideration decision. Emond v. Office of

Personnel Management, MSPB Docket No. DC-831M-12-0383-I-2, Appeal File,

Tab 4, Initial Decision (I-2 ID) at 1, 8. Notwithstanding the conflicting order that

the executor of Mr. Burns’ estate had submitted, the administrative judge found

that there was no evidence whatsoever that the appellant’s certified copy was

invalid or in any way illegitimate, that she was entitled to a former spouse

survivor annuity, and that therefore no overpayment had occurred. I -2 ID at 5.

¶4 On petition for review, OPM argued that the administrative judge erred by

not requiring the appellant to prove her entitlement to the benefit she sought and

in not examining or inquiring into the best evidence of the authenticity of

documents. Emond v. Office of Personnel Management, MSPB Docket

No. DC-831M-12-0383-I-2, Petition for Review (I-2 PFR) File, Tab 1.

Determining that the record was not fully developed on the issue of which copy of

the court decree was invalid, the Board directed OPM to obtain an order from the

state court specifically declaring that either the copy of the decree submitted by

the appellant, or the one submitted by Mr. Burns’ estate, was invalid. I-2 PFR

File, Tab 11. OPM submitted a number of documents, which it argued

established that the appellant was not awarded a former spouse survivor annuity,

but it did not submit a definitive order from the state court, as directed by the

Board. I-2 PFR File, Tab 14

¶5 The Board determined that the rights and interests of Mr. Burns’ estate

could be affected by the decision in this case and afforded the executor the right

to participate in the appeal as an intervenor. I-2 PFR File, Tab 16. Subsequently,

Mr. Burns’ mother died, and her daughter filed a motion to intervene in the

proceedings. I-2 PFR File, Tab 18. The Board granted the request, ordering the

intervenor to file an order from the state court declaring that the copy of the

divorce decree submitted by the appellant as the basis for her survivor annuity

was invalid or had been set aside. I-2 PFR File, Tab 20. Ultimately, the

intervenor submitted a true, certified copy of an order signed by a judge of the

Circuit Court of Fairfax County, Virginia, after a hearing, finding that the

“alleged Final Decree of Divorce” that was “allegedly ce rtified” by the court on

August 6, 2002 (the copy originally submitted to OPM by the appellant) “is not a

true and accurate copy of this court’s true Order” and that the final decree of

divorce (the copy originally submitted by the executor of Mr. Burns’ e state, by

OPM during these proceedings, and by the intervenor) “is a true and accurate

copy of this Court’s final order and should be given full faith and credit and

enforced as an order of this Court.” I-2 PFR File, Tab 28 at 46-47, 58-61, 63-66.

¶6 Based on this evidence, the Board vacated the administrative judge’s

finding regarding the validity of the decree submitted by the appellant and

affirmed OPM’s reconsideration decision finding that, because she was not , in

fact, eligible for the former spouse survivor annuity she had received, she had

been overpaid. Emond v. Office of Personnel Management, MSPB Docket

No. DC-831M-12-0383-I-2, Final Order at 8 (June 25, 2015). The Board

remanded the appeal for further adjudication, however, directing OPM to prove

by preponderant evidence not only the existence, but also the amount, of the

overpayment, and also to consider the issue regarding waiver of collection of the

overpayment. Id. at 8-9. On remand, the administrative judge found it

undisputed that the amount of the overpayment was $62,739.96, Emond v. Office

of Personnel Management, MSPB Docket No. DC-831M-12-0383-B-1, Remand

File (RF), Tab 16, Remand Initial Decision (RID) at 2-3, but that the appellant

was without fault because she performed no act of commission or omission which

resulted in the overpayment, 5 C.F.R. § 831.1402, and that recovery was against

equity and good conscience because repayment would cause her financial

hardship. RID at 4-5. As such, the administrative judge reversed OPM’s decision

denying the appellant’s request for waiver of the overpayment. RID at 5. The

remand initial decision became the Board’s final decision on November 13, 2015,

when neither party filed a petition for review.

¶7 The appellant then filed a timely motion for attorney fees and costs incurred

beginning in March 2010 when it first appeared that her continued right to the

former spouse survivor annuity she was receiving might be in jeopardy, t hrough

the period when the Board decided that she was not, in fact, entitled to the

annuity and had received an overpayment, and continuing until October 2015

when the administrative judge issued the remand initial decision reversing OPM’s

reconsideration decision denying the appellant’s request for waiver of the

overpayment. Emond v. Office of Personnel Management, MSPB Docket

No. DC-831M-12-0383-A-1, Attorney Fees File (AFF), Tabs 1-2. The appellant

sought fees at hourly rates ranging from $465 in 2010 to $568 in 2015, 2 AFF, Tab

1 at 39-40, plus costs, for an award of $61,019.74, which, she contended,

For his work beginning in February 2014, and consistent with the retainer agreement,

the appellant’s counsel sought rates under the Laffey Matrix for each period of time at

issue. AFF, Tab 1 at 28-29, 39-40, 80. The Laffey Matrix is a schedule maintained by

the United States Attorney’s Office in the District of Columbia that purports to show

market rates for attorneys in the District of Columbia in cases where a statute permits

the prevailing party to recover “reasonable” attorney fees . Rumsey v. Department of

Justice, 123 M.S.P.R. 502, ¶ 17 n.6 (2016), rev’d and remanded on other grounds by

Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017).

represented time spent through the decision by the administrative judge after

remand by the Board, id. at 40. Subsequently, the appellant submitted a

supplemental motion in the amount of $13,178.91 at the $568 hourly rate for fees

and costs incurred in preparing the fee motion, AFF, Tab 4, and a second

supplemental motion in the amount of $6,532.00 at the $568 rate for fees and

costs incurred in responding to OPM’s opposition to the fee motion and its

request for a time extension, AFF, Tab 10. Finally, the appellant submitted

another motion in the amount of $4,316.80 for fees at the $568 rate and costs

incurred in responding to an order of the administrative judge. 3 AFF, Tab 15. In

response, the agency conceded that the appellant was a prevailing party, that an

attorney-client relationship existed, and that fees were incurred, but it argued that

fees were not warranted in the interest of justice and that, even if they were, the

amount requested was not reasonable. AFF, Tab 8.

¶8 In an addendum initial decision based on the written record, the

administrative judge granted the appellant’s request for fees in full. AFF, Tab 16,

Addendum Initial Decision (AID) at 2, 5. The administrative judge found that an

attorney-client relationship existed in connection with the Board appeal and that

the appellant was the prevailing party. AID at 3. The administrative judge then

found that fees were warranted in the interest of justice, first because the

appellant was substantially innocent of the charges, given the administrative

judge’s finding that she was without fault in creating the overpayment, and

second because OPM knew or should have known that it would not prevai l on the

merits, given that it had reversed itself, without explanation, regarding the

With this motion, the appellant also revised upward her request for fees incurred

through the decision of the administrative judge, after remand by the Board, from

$61,019.74 to $81,541.09, making the total requested $105,568.80. AFF, Tab 12. We

will address later in this decision the appellant’s basis for, and the reasonableness of,

the increase in this request.

appellant’s fault 4 and also had violated an order compelling discovery during the

remand proceeding. AID at 3-4. As for the reasonableness of the fees requested,

the administrative judge found that the yearly increases in the hourly rates were

provided for in the retainer agreement and were reasonable, AID at 4, as were the

number of hours claimed, AID at 4-5.

¶9 The agency has filed a petition for review arguing solely that fees are not

warranted in the interest of justice, Petition for Review (PFR) File, Tab 1 at 4,

and the appellant has responded in opposition, PFR File, Tab 3.

ANALYSIS

¶10 In retirement appeals, the most relevant categories for determining if an

attorney fee award is warranted in the interest of justice are whether OPM knew

or should have known when it issued its reconsideration decision that it would not

prevail on appeal and whether OPM’s action was clearly without merit. See

Goldbach v. Office of Personnel Management, 49 M.S.P.R. 9, 14-15 (1991);

Kent v. Office of Personnel Management, 33 M.S.P.R. 361, 365-69 (1987).

Fees are warranted in the interest of justice because the agency knew or should

have known that, regarding the issue of waiver, it would not prevail on the mer its.

¶11 In arguing that the administrative judge erred in finding that fees are

warranted under the “knew or should have known” standard, OPM submits that,

when it issued its reconsideration decision, it had reasonable grounds to deny the

appellant’s application for a former spouse survivor annuity and to find that she

was not without fault in creating the overpayment. PFR File, Tab 1 at 21. A

determination that an award is warranted under the “knew or should have known”

standard requires an evaluation of the record before OPM when the

reconsideration decision was made. Goldbach, 49 M.S.P.R. at 19. In determining

if an award is merited under this category, the Board considers whether OPM was

In an earlier reconsideration decision, OPM had found that the appellant was not at

fault in causing or contributing to the overpayment. I-1 IAF, Tab 1 at 88.

negligent in processing the application, lacked a reasonable or su pportable

explanation for its position, or ignored clear, unrebutted evidence that the

appellant satisfied the criteria for a benefit. See Stewart v. Office of Personnel

Management, 70 M.S.P.R. 544, 548 (1996). The position OPM took in its

reconsideration decision denying the appellant’s request for waiver of the

overpayment was that there was evidence in the file that showed the divorce

decree she had submitted might have been altered for her to claim entitlement to a

survivor annuity benefit and that, therefore, she was not totally without fault in

the matter. RF, Tab 4 at 13. As the administrative judge found, however, there

was no evidence in the file OPM submitted suggesting that the appellant altered

the divorce decree. AID at 3-4. To the extent that such evidence existed, OPM

failed to provide it and failed as well to respond to the appellant’s discovery

request. 5 RF, Tab 12. Further, when the administrative judge ordered OPM to

respond fully, granting the appellant’s motion to compel, RF, Tab 13, the agency

indicated that the file it had earlier submitted was fully responsive to the

appellant’s discovery request, RF, Tab 14 at 6. In addition, the appellant

steadfastly urged that the copy of the divorce decree she submitted was provided

to her by her late husband and was certified by the court, that, based on that

decree, she believed she was entitled to the former spouse survivor annuity

benefit, and that she was unaware of any other version of the decree until

Mr. Burns’ mother submitted her copy. RF, Tab 15 at 28-31. The administrative

judge found that OPM offered no evidence to contradict the appellant’s sworn

version of the facts. RID at 4.

¶12 Under the circumstances, we therefore agree with the administrative judge

that, because OPM failed to show, at the time it issued its reconsideration

decision on waiver, that it had a reasonable explanation for its position regarding

the appellant’s alleged alteration of the divorce decree, it knew or should have

The appellant sought all documents regarding communications between individuals in

OPM’s Reconsideration Branch concerning her. RF, Tab 12.

known that it would not prevail on the merits of the waiver issue and that

therefore fees are warranted in the interest of justice. 6

¶13 As noted, OPM does not challenge on review the hourly rates charged by

the appellant’s counsel over the years of litigation or the hours expended.

PFR File, Tab 1 at 4. We find that the detailed and thorough billing records

submitted by the appellant’s counsel are not duplicative, padded, or excessive.

AFF, Tabs 1, 4, 10, 15. This includes time spent preparing the fee request,

Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 30 (2011), and replying to

OPM’s opposition and request for an extension of time and to the administrative

judge’s order. OPM does, however, argue that fees should be reduced based on

the appellant’s limited success in the litigation. We agree.

The fees awarded should be reduced to account for the appellant’s limited success

in this litigation.

¶14 In this case, the appellant’s original challenge was to OPM’s decision

finding that, although she had received a former spouse survivor annuity for a

period of time, she was not eligible for it. As to that matter, she was ultimately

not successful. The appellant also challenged OPM’s decision finding that,

As noted, the administrative judge also found that fees are warranted in the interest of

justice because the appellant was substantially innocent. AID at 3 -4. The actual

category provides that an attorney fee is warranted in the interest of justice when the

action was clearly without merit or wholly unfounded, or the employee was

substantially innocent of the charges. Allen v. U.S. Postal Service, 2 M.S.P.R. 420,

433-35 (1980). However, the Board has excluded the substantial innocence subcatego ry

of this category from consideration in retirement-related appeals because the concept of

innocence does not apply when no charges of misconduct are leveled against the

individual seeking retirement benefits. Simmons v. Office of Personnel Management,

31 M.S.P.R. 559, 565 (1986). In any event, the Board has held that, once it finds that

fees are warranted in the interest of justice under one Allen category, it need not

consider whether fees are warranted under other Allen categories. Gensburg v.

Department of Veterans Affairs, 80 M.S.P.R. 187, ¶ 17 (1998). Therefore, to the extent

the administrative judge erred in finding that fees are warranted in the interest of justice

because the appellant was substantially innocent, any such error did not prejudice her

substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984).

having received an overpayment, she was not eligible for waiver, and as to that

matter, she was successful. As such, the appellant received partial, but not full,

relief.

¶15 When a prevailing party makes more than one claim for relief, and the

claims involve a common core of facts or are based on related legal theories, the

fee determination should reflect the overall relief obtained in relation to the hours

reasonably expended. Guy v. Department of the Army, 118 M.S.P.R. 45, ¶ 19

(2012). In a case in which the party seeking fees obtains only “partial or limited”

success, the tribunal awarding fees has discretion to make an equitable adjustment

as to what adjustment is appropriate. Hensley v. Eckerhart, 461 U.S. 424, 436-37

(1983); Guy, 118 M.S.P.R. 45, ¶¶ 19-20. In making an equitable adjustment of

attorney fees on account of a prevailing party’s partial or limited success, the

tribunal may adjust downward the “lodestar,” the hours reasonably spent on the

litigation multiplied by a reasonable hourly rate, by identifying specific hours that

should be eliminated or, in the alternative, by reducing the overall award to

account for the limited degree of success. Hensley, 461 U.S. at 433, 436-37;

Guy, 118 M.S.P.R. 45, ¶¶ 8, 20. The former method should be used when it is

practicable to segregate the hours devoted to any related but unsuccessful claims ;

if that method is not practicable, then a percentage reduction should be imposed.

Guy, 118 M.S.P.R. 45, ¶ 20.

¶16 On review, the agency argues that, because the appellant initially sought

relief from OPM’s denial of her claim for a former spouse survivor annuity, no

fees should be awarded for time expended prior to June 25, 2015, since on that

date the Board issued its decision denying her claim and finding that she was not,

in fact, entitled to that benefit. PFR File, Tab 1 at 14-16. In response, the

appellant contends that portion of the litigation also included consideration of the

issue of whether she was at fault in creating and/or receiving the overpayment , an

issue that also is critical in determining if she would have to pay it back. 7 PFR

File, Tab 3 at 9-10. The appellant’s claim is borne out by the record. For

example, in the appellant’s September 16, 2010 request for reconsideration of

OPM’s decision finding that she was not entitled to a former spouse survivor

annuity, she argued that, if OPM did not agree that she was entitled to the

annuity, then repayment was inappropriate and waiver legally required under the

circumstances. I-1 IAF, Tab 1 at 37-42, 50-60. OPM, in its February 27, 2012

reconsideration decision, addressed both issues. I-1 IAF, Tab 4 at 10-12. On

appeal, the administrative judge determined that the sole issues were whether

there was an overpayment and, if so, whether the appellant was entitled to waiver,

I-2 IAF, Tab 8 at 3, and, in his initial decision finding that she was entitled to a

former spouse survivor annuity and therefore was not overpaid , the administrative

judge further found that, even if there was an overpayment, the appellant was

entitled to waiver based on financial hardship, I-2 ID at 4-8.

¶17 We therefore agree with the appellant that both matters were at issue such

that, as stated in his declaration, counsel’s efforts pertained to both matters until

the Board issued its decision on June 25, 2015. AFF, Tab 1 at 21-23.

Nevertheless, it is not practicable to segregate the hours devoted to the

appellant’s unsuccessful challenge to OPM’s denial of her request for a former

spouse survivor annuity from the hours devoted to her successful claim for waiver

of the overpayment. Therefore, we find it appropriate to reduce the overall award

to account for the appellant’s limited degree of success. Hensley, 461 U.S.

at 436-37; Guy, 118 M.S.P.R. 45, ¶ 20. In so doing, we acknowledge that the

Supreme Court has further addressed this issue post-Hensley, for example,

cautioning against “double counting” factors by adjusting the lodestar figure

where the results obtained are fully reflected in the reasonable hourly rate of the

To be entitled to waiver of an overpayment, the appellant is required to show that she

was without fault in creating the overpayment and that recovery would be against equity

and good conscience. 5 C.F.R. § 831.1401.

attorneys and the reasonable number of hours expended. Blum v. Stenson,

465 U.S. 886, 899-900 (1984). In Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

552-53 (2010), the Court reaffirmed that adjustments to the lodestar may be made

only in “rare” and “exceptional” circumstances and that adjustments are

warranted only where the lodestar figure fails to take into account a relevant

consideration that is not subsumed therein.

¶18 In the instant case, the lodestar figure, which we have not disturbed, fails to

take into account that, while the appellant did succeed in not having to pay back

the money she improperly received as Mr. Burns’ former spouse, on the issue

which formed the basis for her appeal at the outset, her entitlement to maintain

the former spouse survivor annuity she had been receiving, she was not

successful. Because the lodestar figure does not take into account this relevant

consideration, we find that this case presents an exceptional circumstance such

that the factor “amount involved and results obtained” should be considered as a

basis for departure from the lodestar figure. Bywaters v. United States, 670 F.3d

1221, 1230 (Fed. Cir. 2012). We therefore find it equitable to reduce by half the

amount of fees requested for the time spent by counsel before June 25, 2015, and

award the appellant $61,019.74 for this time. 8

¶19 As discussed previously, the appellant is also entitled to $13,178.91 for

preparation of the fee motion, $6,532.00 for responding to OPM’s motions, and

$4,316.80 for responding to the administrative judge’s order. Thus, the appellant

is entitled to a total award of $85,047.45.

In fact, the appellant originally sought recovery for only half of the attorney fees and

expenses for the first part of the case, before remand, in “an exercise of billing

judgment,” AFF, Tab 1 at 22, although she subsequently reconsidered he r positon on

this point and requested the full attorney fees and expenses for this part of the case,

AFF, Tab 15 at 11.

ORDER

We ORDER the agency to pay the attorney of record $85,047.45 in fees

and costs. The agency must complete this action no later than 20 days after the

date of this decision. See generally title 5 of the United States Code, section

1204(a)(2) (5 U.S.C. § 1204(a)(2)).

We also ORDER the agency to tell the appellant and the attorney promptly

in writing when it believes it has fully carried out the Board’s Orde r and of the

actions it took to carry out the Board’s Order. We ORDER the appellant and the

attorney to provide all necessary information that the agency requests to help it

carry out the Board’s Order. The appellant and the attorney, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant or the attorney

that it has fully carried out the Board’s Order, the appellant or the attorney may

file a petition for enforcement with the office that issued the initial decision on

this appeal, if the appellant or the attorney believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 9

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

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.

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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

§ 7703(b)(1)(A).

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. ma il, 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. 10 The court of appeals must receive your petition for

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

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 Appeal s for the Federal