Opinion

Brendan Kelly v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Jun 24, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

reasoning that Congress did not intend to extend protection to appellants who allege that their agencies retaliated against them after they challenged practices made unlawful by t itle VII

How later courts described this case

reasoning that Congress did not intend to extend protection to appellants who allege that their agencies retaliated against them after they challenged practices made unlawful by t itle VII

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRENDAN D. KELLY, DOCKET NUMBER

Appellant, DA-1221-20-0466-W-1

DEPARTMENT OF COMMERCE, DATE: June 24, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brendan D. Kelly, Cypress, Texas, pro se.

Christiann C. Burek and William T. Yon, 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

denied corrective action in his individual right of action appeal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to clarify that the appellant’s disclosure regarding alleged

racist hiring practices could not have constituted a protected disclosure under

5 U.S.C. § 2302(b)(8) because it concerned title VII violations, we AFFIRM the

initial decision.

¶2 Under the Whistleblower Protection Enhancement Act of 2012, an appellant

may establish a prima facie case of retaliation for whistleblowing disclosures

and/or protected activity by proving by preponderant evidence 2 that (1) he made a

disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity

described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the

whistleblowing disclosure or protected activity was a contributing factor in the

agency’s decision to take a personnel action against him. 5 U.S.C. § 1221(e)(1);

Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). A protected

disclosure is one that an appellant reasonably belie ves evidences any violation of

any law, rule, or regulation, gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health and

safety. Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

(2013). The proper test for determining whether an employee had a reasonable

belief that his disclosures were protected is whether a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

employee could reasonably conclude that the actions evidenced a ny of the

conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.

¶3 Here, the administrative judge concluded that the appellant failed to show

that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) and, therefore,

was not entitled to any corrective action. Initial Appeal File (IAF), Tab 47,

Initial Decision (ID) at 11. In so concluding, she explained that the appellant

alleged that he had made two protected disclosures to agency personnel, i.e., that

he had disclosed (1) “fraud” by reporting negative comments written on his

performance appraisal 3 and (2) racist hiring practices within his office. ID

at 6-10. She found, however, that neither disclosure constituted a protected

disclosure under 5 U.S.C. § 2302(b)(8). ID at 8, 11. Regarding the appellant’s

alleged disclosure of fraud, the administrative judge reasoned that, prior to filing

his complaint with the Office of Special Counsel, the appellant had filed a formal

equal employment opportunity (EEO) complaint wherein he had alleged that the

negative comments on his appraisal were precipitated by discrimination on the

basis of his age and sex, and in reprisal for prior EEO activity. ID at 6. She

explained that the Board has consistently held that disclosures regarding

discrimination/harassment under title VII and/or EEO reprisal are excluded from

coverage under 5 U.S.C. § 2302(b)(8). ID at 6-7. She also found that the

appellant had failed to show that he reasonably believed that he had disclosed

fraud because the comments on his appraisal were supported, subjective, and did

“not appear to be patently false.” ID at 10-11. Regarding the appellant’s

The appellant’s filings before the administrative judge indicated that he believed that

the unfavorable comments amounted to fraud under the title 18 of the U.S. Criminal

Code because his performance appraisal, which he believed to constitute an official

Government record, had been falsified. E.g., IAF, Tab 35 at 6.

purported disclosure of racist hiring practices, the administrative judge reasoned

that, at the hearing, the appellant had testified that he had no knowledge of any

racist hiring practices at the agency; instead he had qualified his disclosure as

having involved “alleged racist hiring practices.” ID at 9. She explained that the

appellant had indicated that he had no knowledge about any of the individuals

who had applied for positions in his office or their qualifications; rather, he felt

that he had to “stand up” for diversity in a general sense because he believed that

recent hires in his office did not reflect the diversity of Houston, Texas. Id. The

administrative judge reasoned that, although the appellant’s efforts to encourage

diversity in the workplace were commendable, his disclosure of racism in

agency’s hiring process was “wholly without any evidence to corroborate it” and

amounted to nothing more than a vague, unsubstantiated “hunch” and, therefore,

did not constitute a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 9-10.

We discern no basis to disturb the administrative judge’s conclusion that the

appellant’s disclosure of unfavorable comments on his performance appraisal did

not constitute a protected disclosure under 5 U.S.C. § 2302(b)(8).

¶4 The appellant challenges the administrative judge’s conclusion that he

failed to show that he made a protected disclosure under 5 U.S.C. § 2302(b)(8)

regarding negative comments made on his performance appraisal. 4 Petition for

Review (PFR) File, Tab 1 at 7-11. To this end, he contends that the

administrative judge made a “prejudicial” error by considering his prior EEO

complaint because the complaint involved different issues and did not involve a

claim of whistleblower retaliation. Id. at 7-8, 10. The appellant also contends

The initial decision characterized the appellant’s purported disclosure as pert aining to

written comments made on his 2016 midyear progress review. ID at 6, 10; IAF, Tab 11

at 85-86, Tab 14 at 110-15. Both before the administrative judge and on review,

however, the appellant has referenced other unfavorable written assessments of h is

performance. E.g., IAF, Tab 35 at 14, 27; PFR File, Tab 1 at 4, 10. To the extent he

argues that he made a protected disclosure regarding any of these other assessments, we

find that a different outcome is not warranted; indeed, we find that none of the

appellant’s disclosures regarding unfavorable assessments or ra tings of his performance

constitute a protected disclosure under 5 U.S.C. § 2302(b)(8).

that the administrative judge failed to review all of the evidence in the record,

some of which showed that the unfavorable comments made about his

performance were inaccurate. Id. at 9, 11. In so contending, he argues that the

administrative judge “reduced the argument [regarding his purported disclosure of

fraud] to heresy 5 (sic) and took the side of the manager in agreeing that [the

appellant] was a poor performer.” Id. at 9. We find the appellant’s assertions

unavailing.

¶5 Here, we discern two separate alleged protected disclosures regarding the

appellant’s unfavorable midyear performance appraisal. First, the appellant

ostensibly contended that he had disclosed that the agency had violated

anti-discrimination laws when he filed a formal EEO complaint on January 12,

2017, contending that the “unfair and unsubstantiated negative claims” on his

appraisal were precipitated by discrimination on the basis of his sex and age,

reprisal for prior EEO activity, and harassment constituting a hostile work

environment. IAF, Tab 10 at 118-19. Second, he alleged that he reported

criminal fraud when he informed agency management that the unfavorable

comments were unsubstantiated and, therefore, that a Government document had

been falsified. E.g., IAF, Tab 35 at 6-7.

¶6 The appellant’s disclosure of the agency’s purported violation of

anti-discrimination laws via his EEO complaint does not constitute a protected

disclosure under 5 U.S.C. § 2302(b)(8). Indeed, as set forth in the initial

decision, disclosures regarding discrimination, a hostile work environment,

and/or EEO reprisal are excluded from coverage under 5 U.S.C. § 2302(b)(8). ID

at 6-7; see Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10, 17 (explaining

that alleged reprisal for opposition to practices made unlawful by title VII does

We surmise that the appellant intended to reference “hearsay.” PFR File, Tab 1 at 9.

To the extent he contends that the administrative judge erroneously relied on hearsay

evidence, his vague contention does not warrant a different outcome. See Hidalgo v.

Department of Justice, 93 M.S.P.R. 645, ¶ 20 (2003) (stating that relevant hearsay

evidence is admissible in administrative proceedings before the Board).

not constitute a protected disclosure under section 2302(b)(8)). Moreover, such

disclosures do not fall under the purview of 5 U.S.C. § 2302(b)(9)(A)(i). Id.,

¶¶ 24-25 (explaining that a complaint or grievance is protected under 5 U.S.C.

§ 2302(b)(9)(A)(i) only if the it seeks to remedy a violation of 5 U.S.C.

§ 2302(b)(8)).

¶7 Regarding the appellant’s purported disclosure of fraud, we discern no basis

to disturb the administrative judge’s conclusion that the appellant failed to show

that he reasonably believed that he had disclosed any of the categories of

wrongdoing enumerated under 5 U.S.C. § 2302(b)(8). ID at 10-11; see Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb

the administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same);

see also Marques v. Department of Health & Human Services , 22 M.S.P.R. 129,

132 (1984) (explaining that an administrative judge’s failure to discuss all of the

evidence of record does not mean that the evidence was not considered), aff’d,

776 F.2d 1062 (Fed. Cir. 1985) (Table). Indeed, we find that a disinterested

observer with knowledge of the essential facts known to and readily ascertainable

by the appellant could not reasonably conclude that, in reporting the unfavorable

comments, the appellant had disclosed a violation of law, i.e., fraud; rather, he

expressed disagreement with unfavorable, subjective assessments of his

performance. 6 See Gryder v. Department of Transportation, 100 M.S.P.R. 564,

¶ 13 (2005) (finding that the appellant’s conveyance of his disagreement with the

We also find that a disinterested observer could not reasonably conclude that the

appellant had disclosed any of the other categories of wrongdoing enumerated under

5 U.S.C. § 2302(b)(8). See Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363,

¶¶ 22, 24 (2005) (reasoning that the appellant failed make a nonfrivolous allegation that

he had made a protected disclosure of either “gross mismanagemen t” or an “abuse of

authority” when he made allegations that, among other things, questioned managerial

decisions and accused agency personnel of conspiring against him).

agency’s decision not to rehire him did not amount to a protected disclosure).

Thus, a different outcome is not warranted.

We modify the initial decision to clarify that, even if the appellant reasonably

believed that he had disclosed racist hiring practices, such a disclosure would not

fall under the purview of 5 U.S.C. § 2302(b)(8).

¶8 The appellant challenges the administrative judge’s conclusion that he

failed to show that he made a protected disclosure regarding racist hiring

practices at the agency. 7 PFR File, Tab 1 at 4-6, 7, 10. As discussed, the

administrative judge concluded that, because the appellant had only an

unsubstantiated “hunch” that the agency had employed racist hiring practices, he

failed to show that he reasonably believed that he made a protected disclosure

under 5 U.S.C. § 2302(b)(8). ID at 8-10. We modify the initial decision to

clarify that, because the appellant’s disclosure pertained to a title VII violation, it

necessarily fell outside the purview of 5 U.S.C. § 2302(b)(8), even if the

appellant had a reasonable belief that such a violation had occurred . See

Edwards, 2022 MSPB 9, ¶ 17 8; see also Von Kelsch v. Department of Labor,

To support this argument, the appellant provides additional documents, i.e., vario us

emails exchanged between the appellant and agency personnel. PFR File, Tab 1

at 13-20. The Board generally will not consider evidence submitted for the first time

with the petition for review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence. See Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). In any event, the documents are

not material to the outcome of this appeal. See Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review

based on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision) .

In Edwards, the Board overruled its prior decision in Kinan v. Department of Defense,

87 M.S.P.R. 561 (2001). Edwards, 2022 MSPB 9, ¶¶ 19-20. In Kinan, as here, the

appellant had made broad disclosures regarding discrimination, to include disclosing

that an agency component had refused to hire African Americans. Kinan, 87 M.S.P.R.

561, ¶ 3. In Kinan, the Board reasoned that, because the appellant had not filed an EEO

complaint on his own behalf but had instead raised broader concerns, his disclosure fell

under 5 U.S.C. § 2302(b)(8). Id., ¶ 13 n.2. In Edwards, however, the Board explicitly

overruled Kinan to the extent it “found that alleged reprisal for opposition to practices

made unlawful by title VII constitutes a protected disclosure under section 2302(b)(8).”

Edwards, 2022 MSPB 9, ¶ 20. In so doing, the Board explained that appellants are not

59 M.S.P.R. 503, 509 (1993) (reasoning that Congress did not intend to extend

protection to appellants who allege that their agencies retaliated against them

after they challenged practices made unlawful by t itle VII), overruled on other

grounds by Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 236 n.9

(1998), overruled by Ganski v. Department of the Interior, 86 M.S.P.R. 32

(2000). Thus, although we agree that the appellant’s disclosure regarding alleged

racist hiring practices did not constitute a protected disclosure under 5 U.S.C.

§ 2302(b)(8), 9 we modify the basis for this finding.

The appellant raises additional arguments; however, none of these arguments

warrant a different outcome.

¶9 The appellant asserts that a “labor lawyer,” A.G., was “struck as a witness.”

PFR File, Tab 1 at 5-6. He also asserts that the administrative judge did not

allow him to ask “the administrative people” certain questions and o nly permitted

him to question the “decision makers.” Id. at 6-7. We find these assertions both

unclear and unavailing. An administrative judge has broad discretion to regulate

the course of the hearing and to exclude evidence and witnesses that have not

been shown to be relevant, material, and nonrepetitious. Thomas v. U.S. Postal

Service, 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain

reversal of an initial decision on the basis of the exclusion of a witness, the

appellant must show that a relevant witness or evidence, which could have

affected the outcome, was disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4. Here,

neither the appellant nor the agency requested A.G. as a witness; accordingly this

witness was not, as the appellant asserts, “struck” from testifying at the hearing. 10

without redress insofar as the anti-retaliation provision of title VII provides broad

protection. Id., ¶ 23.

Because this disclosure concerned a violation of title VII, it does did not fall under the

purview of 5 U.S.C. § 2302(b)(9)(A)(i). See Edwards, 2022 MSPB 9, ¶¶ 24-25.

To the extent the appellant argues that the agency should have called A.G. as a

witness but failed to do so, PFR File, Tab 1 at 5, his asserti on is again unavailing, see

Lohr v. Department of the Air Force, 24 M.S.P.R. 383, 386 (1984) (reasoning that an

IAF, Tab 21 at 11-12, Tab 22 at 21-25, Tab 27 at 16-17, Tab 36 at 3-4 & nn.5-6.

Moreover, the appellant does not clearly identify any evidence/testimony that he

was precluded from presenting at the hearing nor does he discernably explain how

the disallowed evidence/testimony would have affected the outcome of his appeal.

See Thomas, 116 M.S.P.R. 453, ¶ 4; see also Tines v. Department of the Air

Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must

contain sufficient specificity to enable the Board to ascertain whether there is a

serious evidentiary challenge and concluding that the appellant’s petition

contained neither evidence nor argument demonstrating error by the

administrative judge). Thus, a different outcome is not warranted.

¶10 The appellant states that, because an agency witness “lied under oath,” the

administrative judge “was thus appearing to lie because she was lied to under

oath at the hearing.” PFR File, Tab 1 at 5. The appellant thereafter twice states

that the administrative judge “lied” in the initial decision. Id. at 9-10. To the

extent the appellant, through these assertions, is alleging either bias or favoritism

on part of the administrative judge, we find his assertion unavailing. The Board

has consistently held that, in making a claim of bias or favoritism against an

administrative judge, the appellant must overcome the presumption of honesty

and integrity that accompanies all administrative adjudicators. Washington v.

Department of the Interior, 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King,

1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a

substantial showing of personal bias. Williams v. U.S. Postal Service,

87 M.S.P.R. 313, ¶ 12 (2000). Here, we find that the appellant has not made such

a showing; indeed, his ostensible claim is both vague and unsubstantiated.

¶11 The appellant states that neither the administrative judge nor agency

counsel provided him with an audio recording of the hearing. PFR File, Tab 1

at 11. However, the hearing audio recording, IAF, Tab 42, Hearing Recording,

appellant was not deprived of the right to question a witness when he could have

requested and/or subpoenaed the witness but failed to do so).

which served as the official hearing record, was placed in the record and,

therefore, readily available to the appellant, see 5 C.F.R. § 1201.53(a). Thus, the

appellant’s assertion does not warrant a different outcome.

¶12 The appellant makes a series of allegations regarding purported personnel

actions allegedly taken by the agency, to include the denial of step increases,

negative and/or untimely performance appraisals, and his having been placed on a

performance opportunity plan and a performance improvement plan. PFR File,

Tab 1 at 4-12. These arguments, however, do not provide a basis to disturb the

initial decision; indeed, absent a showing that he made a disclosure descri bed

under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), the appellant is unable to prove a

prima facie case of whistleblower retaliation. See Webb, 122 M.S.P.R. 248, ¶ 6.

Thus, the appellant’s assertions regarding personnel actions do not provide a

basis to disturb the initial decision.

¶13 Lastly, for the first time on petition for review, the appellant argues that the

administrative judge was not properly appointed under the Appointments Clause.

PFR File, Tab 1 at 8-11 & n.3. In support of his argument, the appellant

references the U.S. Supreme Court’s decision in Lucia v. Securities & Exchange

Commission, 138 S. Ct. 2044 (2018). Id. The Board generally will not consider

an argument raised for the first time in a petition for review absent a showing that

it is based on new and material evidence not previously available despite the

party’s due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6

(2016); 5 C.F.R. § 1201.115(d). Here, the appellant offers no justification for his

failure to timely raise his Appointments Clause claim before the administrative

judge. McClenning v. Department of the Army, 2022 MSPB 3, ¶¶ 5-15 (holding

that, in order to be timely, an Appointments Clause claim must be raised before

the close of the record before the administrative judge). Thus, his argument does

not warrant a different outcome.

¶14 Accordingly, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 11

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

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).

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.

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 secur ity. 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 deliver y 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. 12 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