Opinion

Cindy Dabner v. Environmental Protection Agency

Court: Merit Systems Protection Board
Filed: Apr 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

stating that the statutory protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policymakers and administrators have every right to expect loyal professional service from subordinates”

How later courts described this case

stating that the statutory protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policymakers and administrators have every right to expect loyal professional service from subordinates”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CINDY DABNER, DOCKET NUMBERS

Appellant, CH-4324-17-0458-I-1

CH-0752-17-0398-I-1

ENVIRONMENTAL PROTECTION

AGENCY, DATE: April 28, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.

Debra K. Smith, Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained an agency action suspending her for 30 days and found that she failed to

prove her affirmative defenses. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 expre ssly

MODIFIED to correct errors in the administrative judge’s analysis of the

appellant’s claims of retaliation for prior equal employment opportunity (EEO)

activity and her claims of reprisal for whistleblowing and to VACATE the

administrative judge’s finding that the agency would have taken the same

personnel action absent the appellant’s protected disclosures , we AFFIRM the

initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency suspended the appellant from her GS-13 Physical Scientist

position for 30 days based on three charges: (1) failure to follow instructions

(four specifications); (2) conduct unbecoming (two specifications); and (3) failure

to comply with leave procedures (nine specifications). MSPB Docket

No. CH-0752-17-0398-I-1, Initial Appeal File, Tab 4 at 24-29. The appellant

appealed the agency action to the Board and challenged the agency’s charges and

the reasonableness of the penalty and, among other things, raised the affirmative

defenses of discrimination based on race, ancestry, age, and sex, and asserted

retaliation based on prior EEO activity, a prior Board appeal, and whistleblowing.

The appellant also claimed that the agency action violated her rights under the

Uniformed Services Employment and Reemployment Rights Act (USERRA) and

the administrative judge docketed that claim as a separate appeal . MSPB Docket

No. CH-4324-17-0458-I-1, Initial Appeal File (4324 IAF), Tab 3.

¶3 The administrative judge held a lengthy hearing and issued a thorough and

well-reasoned initial decision addressing both appeals. 4324 IAF, Tab 92, Initial

Decision (ID). The administrative judge found that the agency proved all of the

charges and specifications and that the penalty of a 30-day suspension was

reasonable. ID at 13-28, 46-48. The administrative judge also found that the

appellant failed to prove her affirmative defenses. 2 ID at 28-46.

¶4 The appellant has filed a petition for review in which she challenges

virtually all of the administrative judge’s findings regarding the charges, the

reasonableness of the penalty, and her affirmative defenses. Petition for Review

(PFR) File, Tab 1. The appellant also claims that the administrative judge abused

her discretion and demonstrated bias during the hearing. Id.

¶5 After a thorough review of the record evidence, the initial decision, and the

appellant’s claims on review, we discern no reason to disturb the initial decision

except as discussed below. Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12

(2010) (stating that arguments that constitute mere disagreement with the initial

decision do not provide a basis to grant a petition for review); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (finding

no reason to disturb the administrative judge’s conclusions when the initial

decision reflects that the administrative judge considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions). Regarding the

appellant’s arguments that the administrative judge failed to mention all of the

record evidence, the fact that the administrative judge did not mention a

Although she docketed it as a separate appeal, the administrative judge correctly

considered the appellant’s claims that the agency violated her rights under USERRA as

an affirmative defense in the appeal of the suspension. Brown v. U.S. Postal Service,

106 M.S.P.R. 12, ¶ 19 (2007) (stating that in a removal appeal, the Board can consider a

USERRA claim as an affirmative defense).

particular piece of evidence does not mean that she did not consider it. 3 Marques

v. Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,

776 F.2d 1062 (Fed. Cir. 1985) (Table) (finding that an administrative judge’s

failure to mention all of the evidence of record does not mean that he did not

consider it in reaching his decision).

¶6 Regarding the appellant’s affirmative defenses of status-based

discrimination and retaliation for prior EEO activity, the administrative judge

explained that the Board finds unlawful discrimination when an appellant shows

that discrimination or retaliation was a motivating factor in the contested

personnel action, even if it was not the only reason for the actio n, but that the

appellant here failed to prove by preponderant evidence that the agency’s

decision to suspend her was the result of disparate treatment discrimination. ID

at 29-32; see Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,

¶¶ 28-30 (2016), clarified by Pridgen v. Office of Management and Budget ,

2022 MSPB 31, ¶¶ 23-24. Like the merits of the agency’s charges, except as

explained below, the appellant has not shown a basis to disturb the administrative

judge’s well-reasoned decision in this regard. 4 Yang, 115 M.S.P.R. 112, ¶ 12;

Broughton, 33 M.S.P.R. at 359.

To the extent the appellant disagrees with the administrative judge’s credibility

determinations based on the administrative judge’s observation of the demeanor of the

witnesses, regarding the appellant’s claim of harmful procedural error for example, PFR

File, Tab 1 at 7-9, it is well established that the Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly, on the

administrative judge’s observation of the demeanor of witnesses testifying at a hearing,

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may

overturn such determinations only when it has “sufficiently sound” reasons for doing

so. Id. The appellant has not presented such reasons.

Because we affirm the administrative judge’s finding that the appellant failed to show

that discrimination or retaliation was a motivating factor in the agency’s action, we

need not resolve the issue of whether the appellant proved that discrimination or

retaliation was a “but-for” cause of the agency’s decision. See Pridgen, 2022 MSPB

31, ¶¶ 20-22, 29-33.

¶7 As to the appellant’s claim of retaliation for prior EEO activity, the

administrative judge failed to note that both the proposing and deciding officials

were named in the appellant’s EEO filings. PFR File, Tab 1 at 20-21; ID at 32.

This was error and we modify the initial decision to consider that fact.

Nevertheless, we still agree with the administrative judge that the appellant failed

to prove her claim. ID at 32-35. Among other things, we note that the

administrative judge found that the deciding official credibly testified that the

appellant’s prior EEO activity did not play a part in her decision and also found

that in her own testimony the appellant did not specifically refer to a retaliatory

animus on the part of anyone and produced no evidence that the suspension at

issue was motivated by retaliation. ID at 34. The administrative judge also

observed that in her closing argument, the appellant’s assertions regarding

retaliation for prior EEO activity consisted solely of a list of her prior activity,

but did not point to anything supporting a finding of retaliation. ID at 34;

4324 IAF, Tab 90. In sum, the initial decision, as modified to acknowledge that

the proposing and deciding officials were named in the appellant’s prior EEO

activity, correctly found that the appellant failed to establish that retaliation for

prior EEO activity was a motivating factor in the personnel actions taken against

her.

¶8 The appellant next argues on review that the administrative judge erred in

finding that she did not establish her claim of whistleblow er retaliation regarding

eight protected disclosures allegedly made between November 2014, and

June 2016. PFR File, Tab 1 at 9-12. As to six of the disclosures (disclosures 1,

2, 3, 5, 6, and 8), the administrative judge found that they were not only

extremely vague but that the appellant was merely expressing her disagreement

with her supervisor’s opinions regarding matters that were within her supervisor’s

appropriate exercise of her authority, and that, therefore, the appellant did not

nonfrivolously allege any of the kind of wrongdoing listed in 5 U.S.C.

§ 2302(b)(8). ID at 38-39. Because this is an appeal of an adverse action,

however, and not an individual right of action (IRA) appeal, the whistleblower

retaliation claim should be treated as an affirmative defense. Ayers v.

Department of the Army, 123 M.S.P.R. 11, ¶ 12 (2015). The appellant is required

to prove by preponderant evidence that she made disclosures protected under

5 U.S.C. § 2302(b)(8), and that a disclosure was a contributing factor in an

agency personnel action. Campbell v. Department of the Army, 123 M.S.P.R.

674, ¶ 11 (2016). Whether a claim is nonfrivolous does not come into play

because jurisdiction is not at issue. Therefore, to the extent the administrative

judge found that the appellant’s six disclosures were insufficient to qualify as

nonfrivolous allegations to establish IRA jurisdiction, she erred. ID at 38-39.

However, any such error did not prejudice the appellant’s substantive rights

because establishing a protected disclosure requires proof by preponderant

evidence, a higher burden of proof distinct from the lower burden of proof

necessary to make a nonfrivolous allegation. 5 C.F.R. § 1201.4(s) (a

nonfrivolous allegation is a claim under oath or penalty of perjury or supported

by evidence relevant to the matter at issue that, if proven, could establish the

matters it asserts); Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (finding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision). In any

event, we agree with the administrative judge that the appellant’s disclosures are

not protected under the whistleblower protection statutes. Lachance v. White,

174 F.3d 1378, 1382 (Fed. Cir. 1999) (stating that the statutory protection for

whistleblowers “is not a weapon in arguments over policy or a shield for

insubordinate conduct. Policymakers and administrators have every right to

expect loyal professional service from subordinates”); Salerno v. Department of

the Interior, 123 M.S.P.R. 230, ¶ 6 (2016) (stating that to be protected,

disclosures must be specific and detailed, not vague allegations of wrongdoing).

¶9 As to the remaining two disclosures (disclosures 4 and 7), a purported

violation of the statute regarding the privacy of individual health care information

and a requirement regarding the safeguarding of business information, the

administrative judge found that the appellant failed to allege how and under what

circumstances these alleged violations occurred and, because they were so vague,

the appellant did not establish that they were protected disclosures. ID at 39.

The appellant has not shown how the administrative judge erred in this regard.

Salerno, 123 M.S.P.R. 230, ¶ 6.

¶10 Even though he found that the appellant’s purported disclosures were not

protected under the whistleblower protection statutes, the administrative judge

went on to consider whether the appellant established the contributing factor

criterion. ID at 39. One way to establish this criterion is the knowledge/timing

test by showing that the official who took the personnel action knew of the

disclosure and that the personnel action occurred within a period of time such that

a reasonable person could conclude that the disclosure was a contributing factor

in the personnel action. Bradley v. Department of Homeland Security,

123 M.S.P.R. 547, ¶ 13 (2016). The Board has held that disclosures that occurred

up to two years prior to the personnel action meet the timing prong of the test.

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015). Here, the

administrative judge found that, with respect to the disclosures that met the

timing prong, the appellant failed to meet the knowledge prong of the analysis;

the administrative judge noted that the appellant did not testify that either the

proposing or deciding officials knew of the protected activity and there is not any

evidence linking the protected activity and the 30 -day suspension. 5 ID at 39.

The knowledge/timing test is not the only way for an appellant to satisfy the

contributing factor criterion. Stiles v. Department of Homeland Security, 116 M.S.P.R.

263, ¶ 24 (2011). Even if the appellant fails to satisfy the knowledge/timing test, other

evidence, such as that pertaining to the strength or weakness of the agency’s reasons for

taking the personnel action, whether the whistleblowing was personally directed at the

proposing or deciding officials, and whether those individuals had a desire or motive to

retaliate against the appellant should be considered. Id. Here, even if the appellant

made protected disclosures, which we find that she did not, considering the factors for

determining contributing factor independent of the knowledge/timing test, we find th at

¶11 After addressing the appellant’s failure to prove that she made protected

disclosures that were a contributing factor in the personnel action, the

administrative judge went on to find that the agency proved by clear and

convincing evidence that it would have taken the same personnel action absent

the appellant’s purported disclosures. ID at 40. However, the Board has held that

it may not proceed to the clear and convincing evidence test unless it has first

made a finding that the appellant has shown by preponderant evidence that a

protected disclosure was a contributing factor in a personnel action. Clarke v.

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), 6 aff’d,

623 F. App’x 1016 (Fed. Cir. 2015); Belyakov v. Department of Health and

Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013). Thus, the administrative

judge erred in this regard and we vacate her finding that the agency met its clear

and convincing burden.

¶12 The appellant argues on review that the administrative judge failed to

consider her claim that she made additional protected disclosures for which she

was suspended, principally, signing documents “under protest” and “under

duress,” actions which formed the basis of the conduct unbecoming charge. PFR

File, Tab 1 at 9-10. Because the administrative judge did not consider this claim

and the record is complete, we do so now and modify the initial decision

accordingly.

¶13 The administrative judge found that the appellant’s signing internal

documents and communications with state partners as she did, after being told not

to do so, constituted conduct unbecoming. ID at 23-27. There is no requirement

under 5 U.S.C. § 1221(e)(2) that the adverse personnel action be based on facts

the appellant failed to establish contributing factor. We modify the initial decision to

include this analysis.

We acknowledge that, in Delgado v. Merit Systems Protection Board, 880 F.3d 913,

923 (7th Cir. 2018), the U.S. Court of Appeals for the 7th Circuit called into question

some of the reasoning in Clarke. The court did not, however, question this principle.

completely separate and distinct from protected whistleblowing disclosures.

Watson v. Department of Justice, 64 F.3d 1524, 1528 (Fed. Cir. 1995). Wrongful

or disruptive conduct is not shielded by the presence of a protected disclosure,

and the character and nature of a disclosure can still be a legitimate basis for

discipline. Greenspan v. Department of Veterans Affairs, 464 F.3d 1297, 1305

(Fed Cir. 2006); Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673, ¶

12 (2011). The Whistleblower Protection Act was n ot meant to shield employees

from their own misconduct. Carr v. Social Security Administration, 185 F.3d

1318, 1326 (Fed. Cir. 1999). Therefore, even if the appellant’s signing

documents as she did could be considered a disclosure of information and

therefore protected under 5 U.S.C. § 2302(b)(8), her inappropriate conduct

surrounding any such disclosures does not preclude discipline. Furthermore, the

appellant notations with her signature do not explain how she was disclosing one

of the types of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See Salerno,

123 M.S.P.R. 230, ¶ 6 (stating that to be protected, disclosures must be specific

and detailed, not vague allegations of wrongdoing, and must evidence one of the

types of wrongdoing set forth in 5 U.S.C. § 2302(b)(8)).

¶14 Lastly, the appellant argues on review that the administrative judge abused

her discretion and exhibited a lack of judicial temperament during the third day of

the hearing when the administrative judge directly questioned the agency

representative as to the location of certain documents in the record, and when the

appellant’s representative objected, “went into a tirade,” and “in an angry

outburst and in extremely loud yelling,” warned him that, if he said another word,

he would be expelled from the hearing and be held in contempt. PFR File, Tab 1

at 6-7. The appellant argues that she was thereby denied the opportunity to

cross-examine the agency representative, that the administrative judge was

attempting to intimidate her representative, and that the representative felt

verbally attacked. 7

¶15 The next day, the appellant filed a motion to strike the entire exchange from

the record, arguing that she was denied the opportunity to state the basis for her

objection to the administrative judge’s questioning of the agency representative.

4324 IAF, Tab 85. The administrative judge denied the motion, explaining that

the agency representative was not a witness and was not offering testimonial

evidence, and that she (the administrative judge) could not and would not

consider anything the agency representative said as evidence. Id., Tab 86. She

acknowledged, however, that, to the extent the appellant was unable to make a

full record of her argument on the matter, she had erred, and that if the appellant

felt that, through the motion, she had made her position clear, the matter would be

closed, but that if she was not satisfied, she could submit further argument within

a week. Id. The appellant did not submit anything further.

¶16 We first find that the appellant has not shown that the administrative judge

abused her discretion in questioning the agency representative regarding the

location of documents in the record. The administrative judge was not, as she

explained, eliciting testimony from the agency representative, and there is no

indication in the initial decision that she considered what the representative said

as testimony. Rather, the administrative judge was attempting to assure that she

understood the agency’s position on a particular issue, which is part of her

obligation as an adjudicator. Moreover, an administrative judge has broad

discretion to control the proceedings. Grubb v. Department of the Interior,

96 M.S.P.R. 361, ¶ 27 (2004). Further, the administrative judge acknowledged

that she may have erred in not allowing the appellant to explain her position

The appellant argues, without citation to the record, that this was the third or fourth

time during the hearing that the administrative judge had angrily cut off her

representative and denied her the opportunity to place into the record objections to

rulings. PFR File, Tab at 6.

regarding the questioning, but the error was cured when she afforded the

appellant an opportunity to further explain and she failed to do so.

¶17 Next, we consider the appellant’s claim that the administrative judge

demonstrated a lack of judicial temperament and, based on a careful review of the

exchange, find there was no “tirade” by the administrative judge, as the appellant

alleges, and the administrative judge did not engage in any “extremely loud

yelling.” In fact, she did not yell at all. 8 Rather, she spoke with authority and

exhibited appropriate control.

¶18 Construing the appellant’s assertion as one of bias, she has not proven her

claim. 9 An administrative judge’s conduct during the course of a Board

proceeding warrants a new adjudication only if the administrative judge’ s

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)). Although the administrative judge’s tone was sharp in the exchange

at issue, we do not believe that her statements or the record as a whole in any way

reflect bias on her part in favor of the agency. Deleon v. U.S. Postal Service,

7 M.S.P.R. 640, 643 (1981). Nor has the appellant, by her claim, overcome the

presumption of honesty and integrity that accompanies administrative

adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386

(1980).

We have reviewed both the written hearing transcript and the audio recording of the

hearing.

The appellant notes that the administrative judge denied many of her representative’s

objections during the hearing, but she has not shown with regard to any particular

ruling how the administrative judge erred or how her substantive rights were

prejudiced.

NOTICE OF APPEAL RIGHTS 10

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

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

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

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

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

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

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

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

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

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

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

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

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

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

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

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

to waiver of any requirement of prepayment of fees, costs, or other 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 Cir cuit or any court

of appeals of competent jurisdiction. 11 The court of appeals must receive your

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

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the