Opinion

Whitney Baillie v. Department of Energy

Court: Merit Systems Protection Board
Filed: May 26, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WHITNEY HELEN BAILLIE, DOCKET NUMBER

Appellant, DC-1221-20-0838-W-1

DEPARTMENT OF ENERGY, DATE: May 26, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Whitney Helen Baillie, Syracuse, New York, pro se.

Ida E. Hernandez, Esquire, Albuquerque, New Mexico, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal for lack of jurisdiction .

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

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 as

to the administrative judge’s analysis of why the appellant failed to make a

nonfrivolous allegation that she reasonably believed that she disclosed a violation

of law, rule, or regulation, we AFFIRM the initial decision.

BACKGROUND

¶2 According to the appellant, in June 2019, she received a 1-year appointment

as a Graduate Fellow with the agency’s National Nuclear Security Administration

(NNSA). Initial Appeal File (IAF), Tab 4 at 4; Pacific Northwest National

Laboratory, Graduate Fellowship Program, www.pnnl.gov/projects/ngfp (last

visited May 26, 2022). In May 2020, NNSA offered the appellant an appointment

as an EN-00 Foreign Affairs Specialist, with a base pay of $59,626. IAF, Tab 6

at 46. The agency specified that the offer was revocable. Id. at 47. Although the

appellant accepted the job offer, she disagreed with the salary and pay band,

arguing that she qualified at the higher EN-03 pay band. Id. at 33-38, 49. Via

emails she sent to the NNSA’s Acting Deputy Administrator -Management on

May 8 and 26, 2020, the appellant asserted that her education and 1 year of work

experience as a Graduate Fellow with the agency qualified her for the EN-03

band. IAF, Tab 4 at 45-47. She expressed her belief that “abiding by merit-based

principles” and the agency’s stated policy to fill positions “on the basis of merit”

required that she be afforded a higher salary or pay band. Id. at 46. She also

urged that such compensation was required by a 2017 Excepted Service Fact

Sheet and agency policy and guidance regarding pay bands. Id. at 46-47. On

May 29, 2020, the agency withdrew its offer of employment, advising the

appellant that it had “decided not to fill the position at this time.” IAF, Tab 4

at 51, Tab 6 at 15.

¶3 The appellant filed this IRA appeal alleging that the NNSA had rescinded a

job offer in retaliation for her May 8 and 26, 2020 emails. IAF, Tab 1 at 3-5, 7.

She further asserted that the agency’s failure to hire her for this vacancy and

other positions violated 5 U.S.C. § 2301(b)(1) and 2302(b)(10) and (b)(12). IAF,

Tab 1 at 5, Tab 4 at 7-8. With her initial appeal form, the appellant provided an

August 5, 2020 final determination letter from the Office of Special Counsel

(OSC). IAF, Tab 1 at 9-10.

¶4 The administrative judge issued an order setting forth the appellant’s

burden to establish the Board’s jurisdiction over her IRA appeal. IAF, Tab 3.

The appellant responded, and the agency replied to her response. IAF, Tabs 4, 7.

In an initial decision based on the written record, the administrative judge

dismissed the appeal for lack of jurisdiction. IAF, Tab 1 1, Initial Decision (ID)

at 1-2, 11. The administrative judge found that, while the appellant exhausted her

remedy before OSC, she failed to nonfrivolously allege that she made a protected

disclosure. ID at 7-8, 9-11. Specifically, he found that the appellant’s emails

regarding the agency’s pay band and salary offer did not constitute protected

disclosures under 5 U.S.C. § 2302(b)(8). ID at 10. He reasoned that “her emails

did not show any evidence the agency had violated a law, rule, or regulation ,” as

opposed to agency policy or guidance. Id. He also found that the appellant failed

to show the agency abused its authority in its salary offers. ID at 10-11. He

explained that the Board lacks IRA jurisdiction over an agency’s alleged

violations of merit systems principles and 5 U.S.C. § 2302(b)(10) and (b)(12). ID

at 11.

¶5 The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has responded to the appellant’s

petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Under the Whistleblower Protection Enhancement Act of 2012, the Board

has jurisdiction over an IRA appeal if the appellant has exhausted her

administrative remedies before OSC and makes nonfrivolous allegations that

(1) she made a protected 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 disclosure or protected activity was a contributing factor

in the agency’s decision to take or fail to take a pe rsonnel action as defined by

5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016). On review, the parties do not challenge the administrative judge’s

finding that the appellant exhausted with OSC her alleged disclosure, and we

discern no basis to disturb it.

We modify the administrative judge’s reasoning as to why the appellant failed to

nonfrivolously allege that she disclosed a violation of law, rule, or regulation.

¶7 The administrative judge concluded that the appellant failed to

nonfrivolously allege that she made a disclosure of a violation or law, rule, or

regulation. ID at 10. In particular, he found that her “email communications

regarding the salary the agency had offered her” were not protected because she

did not cite to laws, rules, or regulations, but rather agency guidance regarding

“the appropriate salary to offer to prospective employees.” Id. He acknowledged

that the appellant also alleged the agency violated 5 U.S.C. §§ 2301(b)(1) and

2302(b)(10) and (b)(12). ID at 4-5. However, he concluded that “it is well

established that such claims do not come within the ambit of the Board’s IRA

jurisdiction.” ID at 11. Although we agree with the administrative judge ’s

jurisdictional conclusion, we disagree with his reasoning. Therefore, we modify

the initial decision as to the basis for concluding the appellant failed to establish

jurisdiction.

¶8 A nonfrivolous allegation of a protected disclosure is an allegation of facts

that, if proven, would show that the appellant disclosed a matter that a reasonable

person in her position would believe evidenced one of the categories of

wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6.

In determining if an appellant met the nonfrivolous pleading standard, we look at

her allegations rather than the agency’s contrary evidence or “interpretation of the

evidence.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1368-69

(Fed. Cir. 2020). The test to determine whether a putative whistleblower has a

reasonable belief in the disclosure is an objective one: whether a disinterested

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

by the employee could reasonably conclude that the actions of the agency

evidenced a violation of law, rule, regulation, gros s mismanagement, a gross

waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. Salerno, 123 M.S.P.R. 230, ¶ 6.

¶9 The gravamen of the appellant’s arguments on review is that the

administrative judge erred in finding she failed to nonfrivolously allege she

violated a rule without applying the reasonable person test. PFR File, Tab 1. We

agree. We need not decide here whether the agency documents identified by the

appellant in her disclosures are, in fact, laws, rules, or regulations within the

meaning of whistleblower protection statutes. At the jurisdictional stage, an

appellant need only make a nonfrivolous allegation that a person in her position

could reasonably conclude they were. 2 Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶¶ 8-9 (2013); see Mason v. Department of Homeland Security,

Because we agree with the appellant based on the language at 5 U.S.C. § 2302(b)(8),

we do not reach her argument that the reasonable person test also is set forth in the

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 , also

known as the No FEAR Act. PFR File, Tab 1 at 5.

116 M.S.P.R. 135, ¶ 17 (2011) (holding that, at the jurisdictional stage in an IRA

appeal, an appellant is not required to identify the particular statutory or

regulatory provision that the agency violated when his disclosures and the

circumstances of them clearly implicate an identifiable law, rule, or regulation) .

While we agree with her that agency materials she referred to in her disclosures

could appear to a reasonable person to be rules, we are not persuaded that the

appellant nonfrivolously alleged that a reasonable person would believe the

agency violated them.

¶10 In her disclosures, the appellant asserted that by failing to offer her the

position at the higher EN-03 pay band, the agency violated its Policy Letter –

Business Operating Procedure 329.1 (BOP) wherein it states “[i]t is the policy of

the [agency] to fill positions efficiently and on the basis of merit.” IAF, Tab 4

at 46, Tab 6 at 97. She also asserted that because the BOP stated the higher

EN-03 pay band was equivalent to a GS-12 position, her year of experience as a

Graduate Fellow qualified her for the EN-03 pay band. IAF, Tab 4 at 46, Tab 6

at 100-01. An alleged violation of personnel rules may constitute a protected

disclosure of a violation of law, rule, or regulation. McDonnell v. Department of

Agriculture, 108 M.S.P.R. 443, ¶ 13 (2008); Ganski v. Department of the Interior,

86 M.S.P.R. 32, ¶¶ 9, 11-13 (2000). Therefore, we consider here whether the

appellant reasonably believed the agency violated its BOP.

¶11 As relevant here, the cited provision in the BOP reflects the agency’s

commitment to hiring on the basis of merit reflects without regard to prohibited

factors such as race, marital status, and sexual orientation . IAF, Tab 6 at 97. It

does not reference or concern salary decisions. Id. Therefore, a reasonable

person reviewing the BOP could not conclude that the agency violated it by

offering the appellant a lower salary or pay band.

¶12 As to the appellant’s contention that she was entitled to an EN-03 position

because she had 1 year of experience as a Graduate Fellow, it was premised on

her assertion that this experience required that she be hired at the GS -12 level.

IAF, Tab 4 at 46. She relies on a BOP provision that describes “the level of

duties” of the EN-03 pay band as “equivalent to grade levels GS-12 and GS-13

grade levels of the General Schedule.” 3 Id. at 100. Another provision of the BOP

specifically reflects that the agency views a GS-12 salary as “linked” to either a

EN-00 or EN-03 position, and that “[i]nitial salary will be set in the pay bands as

described in the . . . Guidebook.” She does not identify any provision within the

BOP that dictates the setting of pay bands.

¶13 Assuming that the fact that the GS-12 is “linked” to both the EN-00 or

EN-03 levels in the BOP is significant, we are not persuaded that a reasonable

person in the appellant’s position would reasonably believe the agency was

required to offer her a position at the higher EN-03 level. Perhaps more

fundamentally, the appellant does not explain the basis of her belief that the

agency was required by law, rule, or regulation to offer her a position at the

equivalent of the GS-12 level due to her 1 year of experience. IAF, Tab 4 at 46.

Therefore, she has not alleged sufficient facts which, taken as true, would

demonstrate that a reasonable person in her position could believe that an offer at

the EN-00 pay band level violated the BOP.

¶14 The appellant also stated in her disclosures that the setting of her salary at

the EN-00 pay band violated section 7.c. of the Guidebook, 4 citing language that

The appellant identified the cited provision as section C of the BOP. IAF, Tab 4

at 46. However, section C does not appear to be relevant to her disclosures. Instead, it

states that in the event that a local collective bargaining agreement conflicts with the

BOP, the agreement “will govern.” IAF, Tab 6 at 97. Interpreting this pro se

appellant’s arguments in the light most favorable to her, we have analyzed her

allegations as relating to section K of the BOP, to which we believe she is likely

referring. IAF, Tab 6 at 99-100; see Miles v. Department of Veterans Affairs,

84 M.S.P.R. 418, ¶ 10 (1999) (stating that administrative judges should interpret pro se

appellants’ arguments in the most favorable light).

Similarly, the appellant disclosed that the EN-00 pay band offer violated a 2017

Excepted Service Fact Sheet. IAF, Tab 4 at 47. The parties did not provide a copy of

the Fact Sheet. Therefore, in considering the appellant’s arguments on review, we have

accepted her characterization of the Fact Sheet as containing, in relevant part, the same

requirements as the Guidebook. Id.; see Hessami, 979 F.3d at 1368 (holding that

agency personnel setting salary for entry-level hires “should” give

“consideration” to factors such as education and “relevant work experience . . .

and knowledge.” IAF, Tab 4 at 46-47, Tab 6 at 84-85. Specifically, the appellant

expressed concern over the way the agency credited her 1 year of Graduate

Fellows experience, maintaining that she should have been offered a higher salary

or pay band because the Graduate Fellow and permanent positions involved “the

exact [same] duties.” 5 IAF, Tab 4 at 45-47. The agency determined that “[the

“whether the appellant has non-frivolously alleged protected disclosures that

contributed to a personnel action must be determined based on whether the employee

alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its

face”). For the same reasons as discussed below regarding the Guidebook, we f ind the

appellant has failed to make a nonfrivolous allegation that the agency violated the Fact

Sheet.

In further support of her claim, she alleged that “[Graduate Fellows] with the same

education and experience qualifications [as her] have been offered EN-03 positions.”

IAF, Tab 4 at 46. She also asserted that other Graduate Fellows were “provided the

same offer as [her]” even though they lacked her educational background and related

work experience. Id. at 45. However, the appellant did not provide any relevant details

regarding such individuals or indicate the basis of her statements. Such conclusory and

unsubstantiated speculation is insufficient to amount to a nonfrivolous allegation that

the appellant reasonably believed the agency made the sam e or different offers to other

Graduate Fellows. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 18;

see Huffman v. Office of Personnel Management, 92 M.S.P.R. 429, ¶ 10 (2002)

(explaining that an appellant does not make a nonfrivolous allegation that he made

protected disclosures if his disclosures appear to indicate that he is reporting

unsubstantiated rumors or that he lacked a firm belief that wrongdoing had occurred) .

The appellant also argued below that the fact that the agency offered other Graduate

Fellows the same salary was an abuse of authority. IAF, Tab 4 at 5. The Board has

historically defined an abuse of authority as an arbitrary and cap ricious exercise of

power by a Federal official or employee that adversely affects the rights of any person

or results in personal gain or advantage to herself or to other preferred persons. Chavez

v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 22 (2013). However, the U.S.

Court of Appeals for the Federal Circuit has defined it more broadly as an arbitrary and

capricious exercise of authority that is contrary to the agency’s mission. Smolinski v.

Merit Systems Protection Board, 23 F.4th 1345, 1351-52 (Fed. Cir. 2022). The

administrative judge found that offering the same salary and grade to all Graduate

Fellows was not an arbitrary or capricious abuse of authority. ID at 10 -11. The

appellant has not disputed this finding on review. In any event, because we have

concluded the appellant failed to raise a nonfrivolous allegation based on the

conclusory and unsubstantiated nature of her allegations, we need not determine

appellant’s] salary offer is commensurate with [her] qualifications.” Id. at 45. It

viewed her 1 year of Graduate Fellow experience as shortening the period of

service the appellant needed for promotion from the EN-00 to EN-03 pay band.

IAF, Tab 6 at 56, 84.

¶15 A communication concerning policy decisions that lawfully exercise

discretionary authority is not a protected disclosure unless the employee

reasonably believes that the disclosure evidences any violation of any law, rule,

or regulation; or gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health or safety. Webb v.

Department of the Interior, 122 M.S.P.R. 248, ¶ 12 n.6 (2015). Section 7.c. of

the Guidebook generally lists factors relevant to salaries for new hires, and states

more specifically that “salary for entry-level hires should be based primarily on

education and academic achievement.” IAF, Tab 6 at 84. It goes on to provide

that “it may also be appropriate to consider . . . work experience . . . if that

experience relates directly to the position.” Id. It does not designate any specific

salary amounts based on these factors, although it generally reflects that certain

education levels fall within the lower, middle, or upper range of salaries for the

EN-00 pay band. Id.

¶16 The cited provision does not provide that external hires may be brought in

at pay band level EN-03, and the appellant has failed to explain why she

reasonably believed it entitled her to this higher pay band. As to salary, we find

that a reasonable person in the appellant’s position could not interpret the

Guidebook as requiring the agency to offer a salary higher than the $59,626 it

offered based on her 1 year of experience because the Guidebook provides no

specific salary amounts. Further, as discussed above, the Guidebook provides

discretion regarding how to factor in education. As such, we find that the

appellant could not have reasonably believed that by expressing her disagreement

whether the administrative judge applied the correct definition of abuse of authority in

making his findings.

with the agency’s grade and salary determinations, she disclosed a violation of

law, rule, or regulation.

¶17 According to the appellant, “abiding by merit-based principles would

qualify [her] for a position at the EN-03 pay band.” IAF, Tab 4 at 47. In

particular, she cited to merit systems principles that all employees be treated

“fairly and equitably and provide[d] equal pay or equal work.” Id. On her appeal

form, she specifically alleged the agency violated 5 U.S.C. §§ 2301(b)(1) and

2302(b)(10) and (b)(12). IAF, Tab 1 at 5. The administrative judge found that

the appellant’s allegations concerning these statutory provisions do not fall within

the Board’s IRA jurisdiction. ID at 11. Although we find he was mistaken, we

agree that the appellant failed to make nonfrivolous allegations that she

reasonably believed the agency violated a statute.

¶18 Protected disclosures in an IRA appeal can include disclosures that an

agency violated merit systems principles. McDonnell, 108 M.S.P.R. 443, ¶ 12;

Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 14 (2000). Under 5 U.S.C.

§ 2302(b)(12), it is prohibited to take or fail to take a personnel action if doing so

violates any law, rule, or regulation implementing or directly concerning merit

system principles. McDonnell, 108 M.S.P.R. 443, ¶ 12. Pursuant to 5 U.S.C.

§ 2301(b)(1), the merit system principles mandate that “[r]ecruitment should be

made from qualified individuals . . . solely on the basis of,” among other factors,

relative knowledge and skills. Assuming, without finding, that “recruitment”

includes salary as well as hiring, neither in her disclosures nor during the

proceedings below did the appellant provide a basis for believing that the salary

she offered was not based on her education and experience. IAF, Tab 1 at 5,

Tab 4 at 4, 19, 45. Instead, as discussed above, she disagreed with the way in

which the agency credited her 1 year of Graduate Fellow experience. Thus, we

are not persuaded that a reasonable person in her position could reasonabl y

believe that she disclosed a violation of 5 U.S.C. § 2301(b)(1) or (b)(12).

¶19 The appellant also alleged in her initial appeal that after the agency

rescinded her job offer, she provided her résumé at NNSA job fairs and to NNSA

offices. IAF, Tab 1 at 4. She asserted the agency violated 5 U.S.C.

§ 2302(b)(10), which generally prohibits discrimination for reasons that do “not

adversely affect . . . performance,” when it did not respond with an offer of

employment. Id. While this may be an allegation of an additional personnel

action, it does not support the appellant’s claim that she made a protected

disclosure in May 2020, before she attended these job fairs. Therefore, we have

not considered this alleged violation of law further. The administrative judge

also concluded that the appellant’s disclosure did not implicate any other category

of wrongdoing under 5 U.S.C. § 2302(b)(8). ID at 10. The parties do not dispute

this finding on review and we discern no basis to disturb it .

¶20 Accordingly, we affirm the decision as modified.

NOTICE OF APPEAL RIGHTS 6

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

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.

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 su ch action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 7 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

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.

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