Opinion

Joseph Ferrante v. Environmental Protection Agency

Court: Merit Systems Protection Board
Filed: Apr 25, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH FERRANTE, DOCKET NUMBER

Appellant, PH-0752-15-0372-I-2

ENVIRONMENTAL PROTECTION DATE: April 25, 2022

AGENCY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Alexandra Meighan and Merrick D. Cosey, Washington, D.C., for the

agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

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

reversed the appellant’s constructive suspension of more than 14 days .

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

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

Therefore, we DENY the petition for review. Except as expressly MODIFIED by

this Final Order to clarify the improper agency action that rendered the

appellant’s leave of absence involuntary and to modify the constructive

suspension period, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant is employed as a Criminal Investigator, GS-1811-13, with the

agency in Edison, New Jersey. Ferrante v. Environmental Protection Agency,

MSPB Docket No. PH-0752-15-0372-I-2, Appeal File (I-2 AF), Tab 16, Refiled

Initial Decision (RID) at 2. The appellant is subject to medical examination

whenever there is a question as to his continued ability to meet the medical

standards or physical requirements of his law enforcement position. RID at 2;

Ferrante v. Environmental Protection Agency, MSPB Docket No. PH-0752-15-

0372-I-1, Initial Appeal File (IAF), Tab 25 at 131-56.

¶3 On February 13, 2015, the appellant suffered a nonwork-related head injury

that resulted in a facial fracture and cognitive impairment and that required

emergency surgery and physical therapy. RID at 2; IAF, Tab 25 at 11, 72, 85,

305. On February 17, 2015, the appellant informed his supervisor of his injury

and began a period of voluntary sick leave. IAF, Tab 25 at 20. The agency

continued to approve his sick leave from February to April 2015, but requested

that he provide sufficient documentation detailing, among other things, how his

medical condition affected his ability to perform his duties. IAF, Tab 6 at 20, 22,

Tab 25 at 20-22. The appellant provided additional medical documentation. IAF,

Tab 25 at 20-21, 25-32, 54, 275-84. The agency found it insufficient to make a

determination as to his fitness for duty and on March 17, 2015, ordered him to

submit to a Federal Occupational Health (FOH) medical examination. Id. at 22.

Instead, on March 19, 2015, the appellant provided a note from his treating

certified registered nurse practitioner (CRNP) stating that he was unable to work

“[d]ue to impaired delayed recall and fatigue” and indicated that he may not use a

firearm, among other restrictions. Id. at 82, 85. But, on April 13, 2015, after

receiving clearance from his CRNP, the appellant requested to return to partial

duty on April 15, 2015. Id. at 32, 83. The agency declined his request and again

ordered him to undergo an FOH exam. Id. at 80, 82.

¶4 The appellant scheduled his FOH exam and reported for testing and

examination on April 29 and May 12, 2015. RID at 3. On May 28, 2015, the

appellant’s CRNP cleared him for return to full duty. IAF, Tab 25 at 54.

Nonetheless, as indicated in her June 15, 2015 report, the FOH medical review

officer (MRO) deferred making a final determination on the appellant’s clearance

until he provided a report from a board-certified neurologist detailing 14 specific

pieces of medical information, including the “Results of a CURRENT

neurological and mental status evaluation.” IAF, Tab 25 at 11-12, 14-15, 74-75.

The appellant did not receive the FOH report until July 9, 2015. RID at 4; IAF,

Tab 25 at 302-03. On July 17, 2015, the appellant’s treating practitioners

forwarded his extant clinical documentation because they believed it to be fully

responsive to the FOH request. RID at 4; IAF, Tab 25 at 286, 305. The FOH

MRO, however, clarified that the records were only 1 of the 14 items needed and

reissued the request for the remaining information. IAF, Tab 25 at 304-06. The

appellant then scheduled an appointment with a board-certified neurologist and

obtained the remaining documentation. RID at 4; IAF, Tab 25 at 213, 307-10.

The appellant submitted this information to the agency on or about October 2,

2015; FOH cleared him for duty, effective October 14, 2015; the agency informed

him of his clearance on Friday, October 16, 2015, and returned him to duty the

following Monday, on October 19, 2015. RID at 4-5.

¶5 While the appellant’s medical clearance decision was pending, he filed this

Board appeal, claiming that the agency’s refusal to return him to duty and

placement on “[e]nforced [l]eave” constituted a constructive suspension and

disability discrimination. IAF, Tab 1 at 5, Tab 23 at 3. The agency asserted that

the appellant was not returned to duty because there was a legitimate, outstand ing

question as to his fitness for duty. IAF, Tab 6 at 7-10. The administrative judge

initially dismissed the appeal without prejudice, but automatically refiled the

appeal on February 3, 2016. I-2 AF, Tabs 1-2; IAF, Tab 27, Initial Decision

at 1-3. After holding the appellant’s requested hearing, the administrative j udge

issued an initial decision finding that the agency constructively suspended the

appellant from May 13, 2015, the day after his last FOH exam, to October 16,

2015, the last day of his absence before returning to duty; reversing the

constructive suspension because it was effected without minimum due process;

and finding unproven the appellant’s disability discrimination claim of failure to

provide a reasonable accommodation. RID at 5, 13, 16.

¶6 The agency has filed a petition for review. Petition for Review (PFR) File,

Tabs 1-2. The appellant has filed a response, to which the agency has replied.

PFR File, Tabs 4-5. On petition for review, neither party challenges the

administrative judge’s findings on the appellant’s failure to provide a reasonable

accommodation claim. PFR File, Tabs 1-2, 4-5. Accordingly, we focus our

discussion on the appellant’s constructive suspension claim.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 Although various fact patterns may give rise to an appealable constructive

suspension, all constructive suspension claims are premised on the proposition

that an apparently voluntary absence actually is not. Rosario-Fabregas v.

Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342

(2016). To demonstrate that the absence was not voluntary and is an actionable

constructive suspension, an appellant must prove that he lacked a meaningful

choice in the matter and that the agency’s wrongful actions deprived him of that

choice. Id. Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are

otherwise met, proof of these two things is sufficient to establish Board

jurisdiction. Id. This analysis extends to situations when, as here, the agency

prevents the appellant’s return to work after an initial voluntary absence. Id. Our

reviewing court has specifically held that the jurisdictional analysis set forth

above is appropriate in such cases. Rosario-Fabregas v. Merit Systems

Protection Board, 833 F.3d 1342, 1346-48 (2016); Thomas v. Department of the

Navy, 123 M.S.P.R. 628, ¶ 9 (2016).

¶8 On petition for review, the agency does not dispute that the appellant’s

absence from April 15 until October 16, 2015, was involuntary. PFR File, Tab 1

at 7, Tab 4 at 10. Nevertheless, it argues that the administrative judge erred in

finding that the appellant met his burden of proof as to the sec ond prong, i.e., that

its wrongful actions deprived the appellant of a meaningful choice . PFR File,

Tab 1 at 7. We find that the agency constructively suspended the appellant for

the reasons set forth below.

The agency was authorized to order the appellant to report for a FOH exam

before returning him to duty.

¶9 Under 5 C.F.R. § 339.301(b)(3) (2015), an agency has the authority to

require an employee who occupies a position with physical and medical standards

to report for a medical exam whenever there is a direct question about his

continued capacity to meet the physical or medical requirements of his position. 2

Here, the administrative judge correctly found that, while the agency must

consider the appellant’s provided medical documentation, it need not rely on that

information exclusive of an opinion from its own physician. RID at 6-8.

¶10 We further find that the agency’s exam order was appropriate because the

appellant’s medical documentation did not sufficiently resolve the question of his

fitness for duty. The appellant’s clearances from his treating practitioners did not

explain how his medical condition affected his duties, or the reasons and bases

for finding that his medical condition had improved since their recommendations

that the appellant be excused from his duties. IAF, Tab 25 at 26-32, 54, 85,

256-57; see Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶¶ 19, 34-35

(2014) (finding that the agency was authorized to order the appellant to report fo r

a fitness-for-duty exam because the provided medical documentation did not

adequately explain his Post-Traumatic Stress Disorder (PTSD) medications,

provide a history of his medical condition, include a prognosis or diagnosis, or

indicate how his PTSD affected his ability to perform his Firefighter position

duties); Calicott v. U.S. Postal Service, EEOC Appeal No. 01A01169, 2003 WL

21634364, at *2 (July 2, 2003) (finding that the agency had a sufficient basis for

ordering a fitness-for-duty exam when the employee’s medical documentation

lacked relevant facts and information regarding his current medical status). We

therefore discern no error in the agency’s decision to order the appellant to

The Office of Personnel Management amended 5 C.F.R. part 339, effective March 21,

2017, after the issuance of the March 10, 2017 initial decision. RID at 1; 82 Fed.

Reg. 10959-01, 10959 (Feb. 17, 2017). For the purposes of this nonprecedential final

order, we apply the 2015 version of the regulations in effect at the time of the

appellant’s alleged constructive suspension. See Zajac v. Department of Agriculture,

112 M.S.P.R. 160, ¶ 5 n.2 (2009). Nonetheless, we would reach the same outcome

under either version because the amended regulations do not absolve the agency its

obligation to designate an appropriate practitioner and to pay for exams that it orders.

Compare 5 C.F.R. part 339 (2015), with 5 C.F.R. part 339 (2017).

submit to a FOH exam, under 5 C.F.R. § 339.301(b)(3) (2015), to determine his

fitness for duty.

The agency failed to fully discharge its obligations under 5 C.F.R. part 339 in

effecting the ordered FOH examination.

¶11 The agency argues that, contrary to the administrative j udge’s findings, it

acted appropriately and reasonably in requiring the appellant to submit acceptable

medical documentation before permitting him to return to work, given the

severity of his injury and the demanding nature of his position. PFR File, Tab 1

at 4, 7-14. While we agree with the administrative judge that the agency acted

improperly when it ordered the appellant to obtain and provide a neurological

evaluation after the agency had conducted the medical examination, we

additionally find that the wrongful action included the agency’s requirement that

the appellant pay for that evaluation.

¶12 The agency-ordered FOH exam did not include the neurological evaluation

at issue. RID at 11-12; IAF, Tab 25 at 259-64. However, early documentation

from the appellant’s treating practitioners raised a question as to his cognition,

which, among other things, affected his ability to operate a firearm. IAF, Tab 25

at 276-84. Thus, given the extent of the appellant’s head injuries and the nature

of his position, the FOH exam likely should have included that evaluation or

referred him for further testing. I-2 AF, Tab 12, Hearing Compact Disc (HCD)

at 1:38:10-1:38:45 (testimony of FOH MRO explaining that FOH medical

examiner is responsible for conducting appropriate medical exams); IAF, Tab 25

at 264 (exam notes from the FOH examining physician recognizing that the

appellant had suffered head trauma, but declining to refer him for further testing );

Archerda, 121 M.S.P.R. 314, ¶ 21 (stating that an exam ordered pursuant to

5 C.F.R. § 339.301 must be done in conformance with the Equal Employment

Opportunity Commission Americans with Disabilities Act regulations , consistent

with business necessity, and tailored to its specific concerns regarding the

appellant’s ability to perform).

¶13 Recognizing the deficiency, the FOH MRO directed the appellant to submit

a “CURRENT” neurological and mental status evaluation by a board-certified

neurologist. IAF, Tab 25 at 11, 305. The neurological evaluation was a required

component of the clearance determination. Id. at 11-12, 74-76, 305-06. Rather

than merely provide already-obtained medical information describing his

diagnosis or prognosis, the appellant was forced to undergo a new exam to fulfill

the FOH directive. Id. at 307-10. Also, unlike Rosario-Fabregas, 122 M.S.P.R.

468, ¶¶ 2-5, 13, wherein, in furtherance of the interactive process, the agency

requested additional medical information from the appellant because the

supporting information he offered was insufficient to make a determination on his

reasonable accommodation request, the FOH MRO’s directive was in conjunction

with an agency-ordered medical exam and evaluation to determine whether it

would permit the appellant to resume his duties in a position with medical

standards and physical requirements. We therefore find that , under these facts,

the agency effectively ordered the appellant to undergo a med ical exam from a

private board-certified neurologist. 3

¶14 Thus, we agree with the administrative judge that the agency did not

comply with 5 C.F.R. § 339.303(b), which required it to “designate[] the

examining physician,” and that this wrongful action deprived the appellant of a

meaningful choice. RID at 12. Although the agency contends that it complied

with the designation requirement by directing the appellant to “have a

board-certified neurologist” complete a “CURRENT neurological and mental

status evaluation,” PFR File, Tab 1 at 15; IAF, Tab 25 at 11, 305, we disagree.

Section 339.303(b) does not indicate that an agency may “designate” an

employee’s yet unidentified personal physician as the examining physician;

The agency argues that under 5 C.F.R. § 339.302, it has the option of offering an exam

under certain conditions. However, even if this is a circumstance in which the agency

had the authority to offer (or refrain from offering) an exam under that provision, it

nonetheless elected to utilize its authority under 5 C.F.R. § 339.301(b)(3) (2015) to

order a medical exam.

rather, it provides that the agency must merely “offer” the employee an

opportunity to submit medical documentation from the personal physician.

¶15 Moreover, when an agency orders or offers a medical exam, the agency

shall pay for the exam. 5 C.F.R. § 339.304 (2015). The evidence in the record

does not reflect that the agency made any effort to pay for the new neurological

exam. 4 Consequently, we find that the agency also did not comply with the

requirements set forth in 5 C.F.R. § 339.304 (2015), and that wrongful action,

along with its failure to comply with 5 C.F.R. § 339.303 (2015), deprived the

appellant of a meaningful choice.

¶16 As a result, the delay in medically clearing the appellant was attributable to

the agency’s failure to conduct a sufficient exam and to comply with its

obligations under 5 C.F.R. part 339 in ordering and paying for a neurological

exam, and not due to the appellant’s delay in providing the neurological report.

Cf. 5 C.F.R. § 339.102(c) (2015) (explaining that “[a]n employee’s refusal to be

examined in accordance with a proper agency order authorized under [5 C.F.R.

part 339] is grounds for appropriate disciplinary or adverse action”) (emphasis

added). We therefore find that the appellant proved that the agency

constructively suspended him from June 15, 2015, when the FOH MRO

completed her report, to October 16, 2015, the appellant’s last day of absence

before returning to duty, and that the Board has jurisdiction, under 5 U.S.C.

§ 7512(2), over that constructive suspension.

Moreover, on review, the appellant’s representative asserts under penalty of perjury

that the agency required the appellant to obtain the neurological evaluation “at his own

cost and expense.” PFR File, Tab 4 at 3, 12. We consider this new evidence because it

implicates the Board’s jurisdiction. See Lovoy v. Department of Health & Human

Services, 94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised on review

because the issue of jurisdiction can be raised at any time). Also, the agency does not

dispute this evidence. PFR File, Tabs 1, 5; see Woodall v. Federal Energy Regulatory

Commission, 30 M.S.P.R. 271, 273 (1986) (finding that a declaration subscribed as true

under penalty of perjury, if uncontested, proves the facts it asserts).

The administrative judge erred in including the appellant’s involuntary absence

before June 15, 2015, in the constructive suspension period.

¶17 The agency argues that the administrative judge erred in finding that the

delay between the appellant’s last FOH appointment on May 13, 2015, and the

appellant’s receipt of the June 15, 2015 MRO report on J uly 9, 2015, was

unreasonable. We agree with the agency in part and modify the administrative

judge’s finding as to when the constructive suspension period began .

¶18 The administrative judge relied on Sherrod v. Department of the Navy,

90 M.S.P.R. 347, ¶ 24 (2001), in finding that the delay was unreasonably long.

RID at 11-12. We find Sherrod distinguishable from the instant case. There, the

agency failed to provide any explanation for its nearly 3-month delay between

receiving the appellant’s request to return to duty and medical information from

his private physician and issuing its request for more information. Sherrod,

90 M.S.P.R. 347, ¶ 24. Here, in contrast, the agency submitted evidence

explaining the medical review process and the FOH MRO’s actions taken to

complete her review, which included reviewing medical documentation from the

appellant’s private practitioners and the FOH exam information. HCD

at 1:37-1:39:20, 1:48:25-1:48:40 (testimony of FOH MRO); IAF, Tab 25 at 11-12,

74-75.

¶19 We also find the remaining cases relied on by the administrative judge on

this issue inapposite. In Caballero v. U.S. Postal Service, 34 M.S.P.R. 263,

266-67 (1987), the Board did not base its finding on the appellant’s constructive

suspension claim on the length of the agency’s delay in rendering a

fitness-for-duty determination. In Baker v. U.S. Postal Service, 84 M.S.P.R. 119,

¶¶ 10, 13 (1999), the Board found that the agency constructively suspended the

appellant because it failed to comply with its obligations to search for a light -duty

assignment within the appellant’s restrictions and within the 72-hour time frame

mandated by the collective bargaining agreement. There is no similar provision

requiring the agency to return the appellant to work within a specific timeframe in

this case; thus, the Board’s unreasonably long delay finding in Baker is not

applicable. Finally, the administrative judge relied upon Justice v. Department of

the Navy, 89 M.S.P.R. 379, ¶ 13 (2001), in finding that, although a “brief delay”

between a medical examination and a medical clearance determination would not

be improper, the Board declines to speculate in these types of cases as to how

long a reasonable delay might last. RID at 12 n.10. Justice, however, was issued

before the Board decided in Bean v. U.S. Postal Service, 120 M.S.P.R. 397

(2013), that a finding of wrongful agency action is required for an involuntary

absence to constitute a constructive suspension, and therefore, merely held that

the appellant’s constructive suspension began on the day the agency refused to

allow him to return to work when he reported for duty that day. See Justice,

89 M.S.P.R. 379, ¶ 13.

¶20 The FOH MRO completed her review of the appellant’s medical

information 1 month after his last FOH exam. RID at 3; IAF, Tab 25 at 12. We

find that this is not an unreasonably long time to conduct such a review and that

such a delay does not constitute a wrongful action sufficient to trigger a

constructive suspension. See Campbell v. U.S. Postal Service, 94 M.S.P.R. 646,

¶¶ 20-21 (2003) (finding no wrongdoing in the agency’s nearly 1 -month delay

between receiving the appellant’s clearance from his private physician and

issuing its request for medical documentation). Therefore, the appellant has not

shown any wrongdoing in the agency’s actions from April 15 to June 14, 2015.

Accordingly, we find that the appellant was constructively suspended only from

June 15, 2015, when the FOH MRO deferred a medical determination pending

further documentation, including a neurological and mental status evaluation,

until October 16, 2015, the last day of the appellant’s absence until his return to

duty.

The agency constructively suspended the appellant from June 15 to October 16,

2015, without due process.

¶21 As explained by the administrative judge, RID at 13, minimum due process

for depriving a tenured public employee of his property right in his emp loyment

entails prior notice and an opportunity to respond. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985). An adverse action taken

without due process must be reversed. Stephen v. Department of the Air Force,

47 M.S.P.R. 672, 681 (1991). Here, the appellant’s constructive suspension of

more than 14 days must be reversed because the agency failed to provide him

with any process before taking that adverse action. See Mc Lain v. U.S.

Postal Service, 82 M.S.P.R. 526, ¶ 10 (1999) (reversing the appellant’s

constructive suspension of more than 14 days because it was effected without the

procedural protections of 5 U.S.C. § 7513(b), in violation of his constitutional

right to minimum due process).

¶22 Accordingly, we find that the agency violated the appellant’s constitutional

rights by constructively suspending him from June 15 to Octo ber 16, 2015,

without minimum due process. We therefore affirm the initial decision’s reversal

of the appellant’s constructive suspension, as modified. 5

ORDER

¶23 We ORDER the agency to cancel the appellant’s constructive suspension

from June 15 to October 16, 2015. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

The agency also asserted its belief that the administrative judge did not order interim

relief. PFR File, Tab 2 at 4-5. As argued, the administrative judge was correct in

declining to order interim relief. See Zygas v. U.S. Postal Service, 116 M.S.P.R. 397,

¶ 14 (2011) (finding an interim relief award inappropriate in co nstructive suspension

cases when at the time the initial decision is issued, the agency has returned the

appellant to paid duty status at the same grade and step occupied prior to his absence).

¶24 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶25 We further ORDER the agency to compensate the appellant for the cost of

the neurological examination and evaluation from his private physician that he

obtained on or about October 2, 2015.

¶26 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

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

¶27 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶28 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

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 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

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, t he 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 such action

was based, in whole or in part, on unlawful discrimination. If so, yo u 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 o ther 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 comm ercial 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