Opinion

William Jolley v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: May 20, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM B. JOLLEY, DOCKET NUMBERS

Appellant, AT-3330-17-0060-I-1

AT-4324-17-0235-I-1 1

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DATE: May 20, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Alan David Tucker, Esquire, Brunswick, Georgia, for the appellant.

Sam Williams, Atlanta, Georgia, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which

denied his request for corrective action in connection with his Veterans

Employment Opportunities Act (VEOA) appeal and dismissed for lack of

We have joined these cases on review based on our determination that doing so would

expedite their processing and would not adversely affect the interests of the parties.

5 C.F.R. § 1201.36(a)(2), (b).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

jurisdiction his Uniformed Services Employment and Reemployment Rights Act

(USERRA) 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 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 these appeals, we conclude that the petitioner has not

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

as to the VEOA appeal and we therefore DENY that petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113. As to the USERRA appeal, we modify the administrative judge’s

dismissal of the claim for lack of jurisdiction and accept her alternative finding

that, even if the appellant did establish Board jurisdiction over his appeal, he

would not be entitled to corrective action.

BACKGROUND

¶2 In 2012, the appellant, a preference-eligible veteran, retired from his

position with the agency as a GS-15 Field Office Director (FOD) in Boise, Idaho.

Jolley v. Department of Housing & Urban Development, MSPB Docket

No. AT-3330-17-0060-I-1, Initial Appeal File (0060 IAF), Tab 17 at 13. On

April 28, 2016, the agency advertised a GS-15 FOD position in Charleston, West

Virginia, under merit promotion procedures, 16-HUD-714, id. at 20-26, and under

the agency’s delegated examining authority, 16-HUD-715-P, id. at 27-32. The

appellant was eligible to, and did, apply under both announcements. 0060 IAF,

Tab 28 at 32. The Human Resources Specialist who reviewed the applications

found that the appellant failed to provide any supporting documentation or

evidence that he had 1 year of experience at the GS-14 level of difficulty and

responsibility “overseeing disaster preparedness and disaster recovery,” as

required under both announcements, and she therefore rated him as “Not

Qualified – Specialized Experience” (“NQSE”). Id. at 37. The agency made a

selection for the position from the 16-HUD-715-P announcement. Id. at 44. The

appellant filed a Freedom of Information Act request for in formation relating to

the selection and, based on the review conducted in connection with that request,

the agency advised the appellant that he had been erroneously disqualified for

consideration for the position and that he would be afforded priority consideration

for a future position at the grade 15 level in the Charleston office. 0060 IAF,

Tab 1 at 17-18.

ANALYSIS

AT-3330-17-0060-I-1—the VEOA appeal

¶3 The appellant filed a VEOA complaint with the Department of Labor

challenging his nonselection for the Charleston FOD position. 0060 IAF, Tab 1

at 14-16. The Office of the Assistant Secretary for Veterans’ Employment and

Training Service conducted an investigation, after which it notified the appellant

of its conclusion that the evidence did not support his allegation that the agency

violated his veterans’ preference rights, id. at 11, and that he had a right to appeal

to the Board, id., which he did, alleging a violation of his right to compete under

5 U.S.C. § 3304(f)(1). 3 Id. at 1-3. He requested a hearing, id. at 2, but later

withdrew that request. 0060 IAF, Tab 18.

5 U.S.C. § 3304(f)(1) provides that preference eligibles or veterans who have been

separated from the armed forces under honorable conditions after 3 years or more of

active service may not be denied the opportunity to compete for vacant positions for

which the agency making the announcement will accept applications from individuals

outside its own workforce under merit promotion procedures.

¶4 In response to the appeal, the agency submitted evidence in which it

explained that, despite having indicated that it would afford the appellant priority

consideration, it did not, in fact, erroneously disqualify him from consideration

for the FOD position, and that it elected to offer him priority consideration, even

though it was not required legally or by policy or practice to do so. 0060 IAF,

Tab 17 at 8-9, 34.

¶5 In his Order and Summary of Close of Record Conference, the

administrative judge found that the appellant had established the Board’s

jurisdiction over his VEOA appeal. 0060 IAF, Tab 27 at 2. She afforded the

parties the opportunity to submit further evidence and argument in support of

their respective positions, which they did. 0060 IAF, Tabs 28-31.

¶6 Thereafter, the administrative judge issued an initial decision in which she

found that the appellant failed to establish that the agency denied him the right to

compete for the Charleston FOD position. 0060 IAF, Tab 32, Initial Decision

(0060 ID) at 5. Specifically, the administrative judge found that the appellant

was allowed to submit an application, and that it was considered, but that he was

found not qualified because he failed to include specific information in his

application packet demonstrating his experience overseeing emergency

preparedness and recovery, a requirement under both vacancy announcements.

The administrative judge further found, based on undisputed evidence submitted

by the agency, that prior employment as an FOD does not automatically qualify

an applicant for all FOD positions because the skill sets and job requirements

vary depending on the location of the FOD position, and that the agency’s

decision to afford the appellant priority consideration for a future vacancy did not

negate the fact that, as to the Charleston FOD position, he failed to follow the

instructions in the vacancy announcements to include the required relevant

experience on his résumé. Id. Accordingly, the administrative judge denied the

appellant’s request for corrective action. 0060 ID at 2, 6.

¶7 The appellant has filed a petition for review, Jolley v. Department of

Housing & Urban Development, MSPB Docket No. AT-3330-17-0060-I-1,

Petition for Review (0060 PFR) File, Tab 1, the agency has responded, 0060 PFR

File, Tab 3, and the appellant has submitted a reply, 0060 PFR File, Tab 4.

¶8 As noted, subsection (f)(1) of 5 U.S.C. § 3304, “Competitive service;

examinations,” expressly provides preference eligibles with a right to compete for

vacant positions under certain circumstances. Boctor v. U.S. Postal Service,

110 M.S.P.R. 580, ¶ 6 (2009). The circumstances under which such preference

eligibles may not be denied the opportunity to compete are those in which the

agency making the announcement will accept applications from individuals

outside its own workforce. Id. That is the case here. As such, the issue is

whether the appellant was, in fact, afforded the opportunity to compete for the

position.

¶9 The VEOA does not provide that veterans will be considered eligible for

positions for which they are not qualified. Ramsey v. Office of Personnel

Management, 87 M.S.P.R. 98, ¶ 9 (2000). The right to compete under

section 3304(f)(1) does not preclude an agency from eliminating a veteran or

preference eligible from further consideration for a position based on his

qualifications for the position. Harellson v. U.S. Postal Service, 113 M.S.P.R.

534, ¶ 11 (2010); cf. Montee v. Department of the Army, 110 M.S.P.R. 271, ¶ 9

(2008) (finding that section 3304 does not exempt veterans or preference eligibles

from the qualification requirements of the positions for which they may apply).

Moreover, there is no requirement that the veteran or preference eligible be

considered at every stage of the selection process, up to that process’s final stage.

Instead, it is only required that the individual be permitted to compete on the

same basis as other candidates. Harellson, 113 M.S.P.R. 534, ¶ 11.

¶10 Here, the agency allowed the appellant to compete for the Charleston FOD

position, but determined that he did not meet the qualifications. 0060 IAF,

Tab 17 at 33, Tab 28 at 42. Both vacancy announcements for the position

included the following qualifications:

For the GS-15: You must have one year of specialized experience

at a level of difficulty and responsibility equivalent to the GS-14

grade level in the Federal Service. Specialized experience for this

position includes:

 Directing or managing housing and community or

economic development programs in rural or urban

communities; AND

 Collaborating with elected Federal, State, and/or local

official and heads of industry professional organizations

regarding housing and community development issues;

AND

 Overseeing disaster preparedness and disaster recovery.

0060 IAF, Tabs 17 at 23, 29. The appellant’s application package included a

résumé which stated, regarding his prior FOD experience, that “I was responsible

for the management and guidance of HUD program (sic).” Id. at 61. A second

résumé, submitted by the appellant below along with his claim that it was the one

that he provided with his application, 0060 IAF, Tab 18 at 3 n.6, adds that “I

conducted briefing programs for Members of Congress and for other federal,

state, and local government officials to inform and guide them with respect to

HUD programs. I represented the Department to the mortgage industry; financial

organizations; housing industry; the construction industry; non-profit entities;

and the public at large.” Id. at 5. Neither résumé reflects, on the appellant’s part,

any experience equivalent to the GS-14 level in overseeing disaster preparedness

and disaster recovery.

¶11 Therefore, we agree with the administrative judge that the agency did not

violate the appellant’s veterans’ preference rights under 5 U.S.C. § 3304(f)(1)

when it considered but did not select him for the Charleston FOD positon because

he did not meet the requirements for the position. 4 Harellson, 113 M.S.P.R. 534,

¶ 11; Clarke v. Department of the Navy, 94 M.S.P.R. 604, ¶ 8 (2003).

¶12 On review, the appellant disputes the qualifications of the individual who

was selected for the position. 0060 PFR File, Tab 1 at 2, 5-10, Tab 4 at 11. Such

a challenge, however, is not relevant to the matter before the Board in this appeal,

which is whether the appellant was afforded the right to compete for the FOD

Charleston position. Having determined that he was, we agree with the

administrative judge that no further issue remains before the Board, including any

challenge by the appellant to the qualifications of the selectee. 5 0060 ID at 6 n.7.

¶13 The appellant also argues on review that the administrative judge erred in

not requiring the agency to timely provide the list of candidates for 16-HUD-714

and 16-HUD-715-P in accordance with the administrative judge’s

acknowledgment order, and that this information was not “revealed” until the date

the record closed. 0060 PFR File, Tab 1 at 7-8. In the acknowledgment order,

the administrative judge directed the agency to provide a narrative response to the

appeal and to submit copies of all other relevant and material documents within

20 days of October 25, 2016 (by November 14, 2016). 0060 IAF, Tab 2 at 6, 9.

The agency moved to stay the filing deadline for its response, 0060 IAF, Tab 4,

after which the administrative judge scheduled, and later rescheduled, a status

Our finding in this regard is unaffected by the agency’s decision to offer the appellant

priority consideration for a future position. The agency’s statement in the letter to him

that he had been “erroneously disqualified for consideration,” 0060 IAF, Tab 17, does

not constitute an admission on the agency’s part in the face of contrary evidence

showing that it did initially consider him, but denied him further consideration based on

his failure to demonstrate the specialized experience required by the vacancy

announcements. Harellson, 113 M.S.P.R. 534, ¶ 11; 0060 IAF, Tab 17 at 33, Tab 28

at 37, 42.

For the same reason, we reject the appellant’s claims on review that the agency

committed a criminal act in violation of 18 U.S.C. § 1917(2) when it “falsely . . .

report[ed] on the examination” of the selectee in reviewing her résumé, 0060 PFR File,

Tab 1 at 5, and that it violated 5 U.S.C. § 3317(a) when it made a selection based on a

certificate of eligibles that included fewer than three names, id. at 3-4.

conference. 0060 IAF, Tabs 12, 15. During that conference, the administrative

judge directed the agency to submit its response to the appeal no later than

February 8, 2017. 0060 IAF, Tab 16 at 2. The agency filed a submission on

February 9, 2017. 0060 IAF, Tab 17. During a subsequent telephonic prehearing

conference when the appellant withdrew his request for a hearing, 0060 IAF,

Tab 18 at 3, the administrative judge set May 17, 2017, as the date the record

would close. 0060 IAF, Tab 23. The agency requested an extension of that date

until May 19, 2017, 0060 IAF, Tab 26, and the administrative judge granted the

request, 0060 IAF, Tab 27. She also directed the agency to respond to certain

specific issues. Id. at 3. The agency made its final submission, including the two

lists of candidates, on May 19, 2017. 0060 IAF, Tab 28. Based on that

submission, and after the record had closed, the appellant submitted additional

evidence related to the qualifications of the selectee. 0060 IAF, Tabs 30-31.

¶14 When the appellant waives his right to a hearing, the record closes on the

date the administrative judge sets as the final date for the receipt or filing of

submissions of the parties and, once the record closes, additional evidence or

argument will ordinarily not be accepted unless, as in this case, it is in rebuttal to

new evidence or argument submitted by the other party just before the record

closed. 5 C.F.R. § 1201.59(b), (c)(2). Here, the administrative judge considered

the evidence and argument submitted by the appellant in this regard, but found

that it did not impact the outcome of the appeal, 0060 ID at 6 n.7, and, as set forth

above, we agree with the administrative judge that the qualifications of the

selectee are not relevant to the dispositive issue in this appeal. Under these

circumstances, we find that the appellant has not shown that the administrative

judge erred or otherwise abused her discretion regarding the close of the record in

this appeal.

AT-4324-17-0235-I-1—the USERRA appeal

¶15 During adjudication of his VEOA appeal, the appellant raised a claim under

USERRA of discrimination based on his performance of duty in the uniformed

service in connection with his nonselection for the Charleston FOD position .

0060 IAF, Tab 1 at 3. The appellant also claimed that, in not selecting him for

that position, the agency retaliated against him for pursuing his rights un der

USERRA. 0060 IAF, Tab 9. On that basis, the administrative judge docketed a

separate USERRA appeal, Jolley v. Department of Housing & Urban

Development, MSPB Docket No. AT-4324-17-0235-I-1, Initial Appeal File (0235

IAF), Tab 2, and set out for the appellant his burdens to establish Board

jurisdiction over such an appeal and to prevail on the merits. 0235 IAF, Tab 3.

Because the appellant did not request a hearing, the administrative judge set a

date for the record to close, 0235 IAF, Tabs 12-13.

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

found that the appellant nonfrivolously alleged, and that the agency did not

dispute, that he performed military service in the U.S. Air Force from

March 1950, to December 1959, and served in the Korean War, and that he

applied, but was not selected, for the position of Charleston FOD. 00235 IAF,

Tab 17, Initial Decision (0235 ID) at 4. She found, however, that the appellant

failed to nonfrivolously allege that the agency’s failure to select him was due to

his performance of a duty in the uniformed service. 0235 ID at 4-5. Accordingly,

she dismissed the USERRA appeal for lack of jurisdiction. 0235 ID at 2, 5.

¶17 The appellant has filed a petition for review, Jolley v. Department of

Housing & Urban Development, MSPB Docket No. AT-4324-17-0235-I-1,

Petition for Review (0235 PFR) File, Tab 1, the agency has responded, 0235 PFR

File, Tab 3, and the appellant has submitted a reply, 0235 PFR File, Tab 4.

¶18 On review, the appellant disputes the administrative judge’s ruling below

docketing as a separate appeal his claim that the agency discriminated against him

in violation of USERRA when it did not select him for the Charleston FOD

position. 0235 PFR File, Tab 1 at 1-2; 0060 IAF, Tab 16. The administrative

judge correctly determined that the Board lacks jurisdiction under VEOA to

consider the appellant’s discrimination claim, Slater v. U.S. Postal Service,

112 M.S.P.R. 28, ¶ 6 (2009), but that the appellant’s discrimination claim merited

consideration as a potential appeal under USERRA. The appellant has failed to

show that the administrative judge erred or otherwise abused her discretion in

adjudicating his USERRA appeal separately from his VEOA appeal.

¶19 To establish jurisdiction under 38 U.S.C. § 4311(a) 6 of the USERRA

statute, an appellant must allege that: (1) he performed duty or has an obligation

to perform duty in a uniformed service of the United States; (2) the agency denied

him initial employment, reemployment, retention, promotion, or any benefit of

employment; and (3) the denial was due to the performance of duty or obligation

to perform duty in the uniformed service. Williams v. Department of the

Treasury, 110 M.S.P.R. 191, ¶ 8 (2008). The agency has not challenged the

administrative judge’s finding that the appellant nonfrivolously alleged that he

satisfied the first two prongs set forth above, 0235 ID at 4, and we discern no

basis upon which to disturb that finding. However, bearing in mind that claims of

discrimination under USERRA are to be broadly and liberally construed in

determining whether they are nonfrivolous, Williams, 110 M.S.P.R. 191, ¶ 8, we

find that the appellant also nonfrivolously alleged that his nonselection was due

to his performance of duty in the uniformed service. Specifically, he alleged that

the agency hired a nonveteran instead of him, 0235 IAF, Tab 7, and that that is

sufficient to constitute a nonfrivolous allegation of discrimination sufficient to

establish USERRA jurisdiction. See, e.g., Davis v. Department of Defense,

105 M.S.P.R. 604, ¶¶ 2, 6 (2007).

Under 38 U.S.C. § 4311(b), an employer may not retaliate against an individual for

pursuing or assisting another individual in pursuing his USE RRA rights. As noted

above, the appellant originally raised such a claim in this appeal. 0235 IAF, Tab 1 at 4,

14. Although the administrative judge provided him with information regarding how to

establish Board jurisdiction and how to prevail on the merits of such a claim, 0235 IAF,

Tab 3, the appellant did not further address it, and the administrative judge did not, in

her initial decision, analyze the claim under 38 U.S.C. § 4311(b). 0235 ID. Because

the appellant has not challenged the initial decision in this regard in his petition for

review, we have not addressed it.

¶20 Nonetheless, we agree with the administrative judge’s alternative finding,

0235 ID at 5 n.5, that, even if the appellant did establish Board jurisdiction, he

failed to prove that his military service was a substantial or motivating factor in

his nonselection because he did not dispute the agency’s evidence that he failed in

his application to include evidence that he possessed specific, specialized

experience overseeing disaster preparedness and recovery as required by the

vacancy announcements and that, as a result, he was deemed not qualified for the

position. Heckman v. Department of the Interior, 109 M.S.P.R. 133, ¶ 26 (2008),

overruled on other grounds by Garcia v. Department of Agriculture ,

110 M.S.P.R. 371 (2009); 0235 ID at 5. We therefore find that the proper

disposition of this USERRA appeal is to deny the appellant’s request for

corrective action.

¶21 On review, the appellant refers to the statement in the agency’s letter to him

stating that he had been “erroneously disqualified for consideration” and that he

would therefore be offered priority consideration for a future FOD vacancy at

Charleston. 0235 PFR File, Tab 1 at 1; 0060 IAF, Tab 17. As noted, in the

appellant’s VEOA appeal, we found that that statement did not constitute an

admission of wrongdoing on the agency’s part in the face of contrary evidence

showing that it did initially consider the appellant for the position, but denied him

further consideration based on his failure to demonstrate the specialized

experience required by the vacancy announcements. Similarly, we find here that

the agency’s letter in no way establishes that the appellant’s military service was

a substantial or motivating factor in his nonselection in the face of evidence

showing that he did not, in fact, meet the requirements for the position.

¶22 The appellant also argues on review that the agency’s use of dual

announcements violated his rights under USERRA. 0235 PFR File, Tab 1 at 2.

However, our reviewing court specifically found to the contrary in one of the

appellant’s previous USERRA cases. Jolley v. Department of Housing & Urban

Development, 299 F. App’x 966, 968 (Fed. Cir. 2008). 7

¶23 In his petition for review, the appellant refers to other USERRA/VEOA

appeals he has filed, going back to 2007. 0235 PFR File, Tab 1 at 2-3. None has

any bearing on the instant case. He specifically notes Jolley v. Merit Systems

Protection Board, 636 F. App’x 567 (Fed. Cir. 2016). 0235 PFR File, Tab 1 at 4.

There, the court affirmed the Board’s findings that the appellant did not show that

his 2010 retirement was involuntary or that the agency coerced his retirement in

retaliation for protected whistleblower disclosures, id. at 569, but that the Board

failed to address his assertion that his 2008 directed reassignment which led to his

retirement was a USERRA violation. Finding the appellant’s allegations in that

regard sufficient to establish the Board’s jurisdiction, the court remanded the case

to the Board for consideration of the merits of the appellant’s USERRA challenge

to his directed reassignment. Id. at 570. According to the appellant, because the

court remanded that case to the Board for consideration of his USERRA claim,

“[he] put all of those prior undecided USERRA claims in the case at hand to

try to get a decision,” and the Board has ignored the Court’s command.

0235 PFR File, Tab 1 at 4-5 (emphasis in original). The matter that is the subject

of the court’s remand decision is currently pending before the Board. Jolley v.

Department of Housing & Urban Development, MSPB Docket Nos. SF-0752-13-

0583-M-1, SF-0752-14-0286-M-1. However, nothing in the court’s decision

provides the Board a basis to review any of the appellant’s other prior appeals.

¶24 On review, the appellant argues that the administrative judge improperly

relied on the Board’s decision in Kitlinski v. Department of Justice, 123 M.S.P.R.

41 (2015), aff’d in part, vacated in part, and remanded, Kitlinski v. Department

of Justice, 857 F.3d 1374, 1382 (Fed. Cir. 2017). The administrative judge cited

The Board may follow nonprecedential decisions of the U.S. Court of Appeals for the

Federal Circuit to the extent, as here, that it finds them to be persuasive. Weed v.

Social Security Administration, 113 M.S.P.R. 221, ¶ 11 (2010).

Kitlinski as support for the appellant’s jurisdictional burden of proof in a

USERRA appeal. 0235 ID at 2. According to the appellant, the administrative

judge erred in citing Kitlinski as precedential because it was decided by only two

Board members. 0235 PFR File, Tab 1 at 4. The court considered, but rejected,

this claim in its decision on the appellant’s case, cited above. There, the court

found that the Board has statutory authority to prescribe such regulations as may

be necessary for the performance of its functions, and that that grant of authority

covers 5 C.F.R. § 1200.3, the regulation allowing the continuing function of the

Board with two members when one seat is unfilled. Jolley, 636 F. App’x at 570;

Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶ 8 (2010). 8

NOTICE OF APPEAL RIGHTS 9

You may obtain review of this final decision in MSPB Docket

No. AT-3330-17-0060-I-1. 5 U.S.C. § 7703(a)(1). The initial decision, as

supplemented by this Final Order, constitutes the Board’s final decision in MSPB

Docket No. AT-4324-17-0235-I-1. 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 an d

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

The appellant also argues on review that the administrative judge erred in not

requiring the agency to timely provide certain evidence relating to his VEO A claim in

accordance with her acknowledgment order. 0235 PFR File, Tab 1 at 5. We have

addressed that claim in our analysis of the appellant’s VEOA appeal; it has no bearing

on this USERRA appeal.

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, t he

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

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 yo ur 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 Appe als 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. 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. 10 The court of appeals must receive your

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.

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