The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLISLE B. EVANS, DOCKET NUMBER
Appellant, SF-0752-15-0566-I-1
v.
DEPARTMENT OF VETERANS DATE: May 3, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jerry Girley, Esquire, Orlando, Florida, for the appellant.
Maureen Ney, Esquire, Los Angeles, California, 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
affirmed the appellant’s removal for inappropriate conduct. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 concl ude 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant was employed as a Materials Handler, WG-05, at the
agency’s Long Beach Health Care System in Long Beach, California. Initial
Appeal File (IAF), Tab 6 at 38. On March 20, 2015, the agency proposed to
remove the appellant based upon four specifications of inappropriate conduct . Id.
at 49-51. The first specification alleged that the appellant yelled at his coworker,
called him derogatory names, and told him that he would die and that he would
kill him. Id. at 49. Specifications 2 and 4 alleged that the appellant left his
Personal Identity Verification (PIV) card 2 in a computer unattended, and
specification 3 alleged that the appellant sent an email that falsely claimed a
coworker threatened to cut his head off with a machete. Id. In an April 22, 2015
decision, the deciding official sustained all four specifications and removed the
appellant from Federal service, effective May 8, 2015. Id. at 40.
2
A PIV card is used by the Federal Government to access Federally controlled facilities
and information systems.
3
¶3 The appellant filed an appeal with the Board, disputing the underlying facts
of specifications 1 and 3, and alleging that his removal was the result of
whistleblower retaliation. IAF, Tab 1 at 2, 11-12. After holding the appellant’s
requested hearing, the administrative judge issued an initial decision affirming
the appellant’s removal, sustaining specifications 1, 2, and 4. IAF, Tab 17, Initial
Decision (ID). In sustaining the first specification, the administrative judge
reviewed the statements and testimony of three corroborating witnesses, who
confirmed that the appellant yelled at his coworker, called him derogatory names,
and threatened to kill him. ID at 5-7. The administrative judge also reviewed and
analyzed the surveillance video of the altercation and found that it was
inconsistent with the appellant’s claims that it was his coworker, and not he, who
was the aggressor in the altercation. ID at 8-9. As for specifications 2 and 4, she
found that the agency established, by preponderant evidence, that the appellant
had left his PIV card unattended in his computer. ID at 11. She did not sustain
specification 3, however, finding that it was plausible that the appellant intended
to communicate in his email that the coworker had, in the past, threatened to cut
his head off with a machete, but had not threatened him on that very day . ID
at 13.
¶4 Turning to the appellant’s claims of whistleblower retaliation, t he
administrative judge found that, while the appellant established that he had made
a protected disclosure that was a contributing factor in his removal, the agency
had established by clear and convincing evidence that it would have removed the
appellant absent his whistleblowing activities. ID at 15, 17-18. She then
explained that the agency established nexus. ID at 18. Finally, the administrative
judge concluded that the deciding official considered the relevant factors, and that
the removal did not exceed the tolerable limits of reasonableness. ID at 19.
Accordingly, she affirmed the appellant’s removal. ID at 21.
¶5 The appellant filed a petition for review, arguing that the administrative
judge erred first in her handling of the surveillance video, then in finding that the
4
proposing official had little motive to retaliate, and finally, in concluding that the
agency considered all relevant factors and that the penalty of removal was
reasonable. 3 Petition for Review (PFR) File, Tab 1 at 3-5. The agency responded
to the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge did not err in her handling of the surveillance video .
¶6 On review, the appellant argues that the administrative judge erred because
she failed to mention the “significant fact” that the deciding official only viewed
the surveillance video for the first time at the hearing, and also claims that she
should not have allowed the deciding official to view the video at the hearing.
PFR File, Tab 1 at 3-4. We view the appellant’s claims as alleging that the
agency committed harmful error, i.e., that it erred in the application of its
procedures in the removal action. To prove harmful error, the appellant must
prove that the agency committed an error in application of its procedures and that
it is likely to have caused the agency to reach a conclusion different from the one
it would have reached in the absence or cure of the error. Forte v. Department of
the Navy, 123 M.S.P.R. 124, ¶ 9 (2016); Stephen v. Department of the Air Force,
47 M.S.P.R. 672, 681, 685 (1991). The burden is on the appellant to show that
the error was harmful, i.e., that it caused substantial harm or prejudice to his or
her rights. 5 C.F.R. § 1201.4(r).
¶7 First, there is no evidence in the record that the agency committed an error.
There is nothing in the record to suggest that the video was in the materials relied
3
On review, the appellant does not dispute the administrative judge’s findings
sustaining the second or fourth specification or establishing nexus. PFR File, Tab 1.
As the record supports the administrative judge’s findings, we discern no reason to
challenge these findings. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
(declining to disturb the administrative judge’s findings where she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)
(same).
5
on in proposing the appellant’s removal, nor is there any evidence that the
deciding official was under any obligation by agency policy to review the video
before making his decision. Further, any alleged error was not harmful, as the
deciding official testified at the hearing that he would still have removed the
appellant from Federal service even after viewing the video. Hearing Recording
(HR) (testimony of deciding official).
¶8 As for the appellant’s argument that the administrative judge should not
have allowed the deciding official to view the video at the hearing, we note that
not only did the appellant fail to object at the hearing, but his attorney told the
administrative judge that he would like the deciding official to view the video
during testimony. HR (statement of the appellant’s representative during the
testimony of the deciding official). Therefore, the appellant’s argument is not
only disingenuous, but because he failed to object to the decision at the hearing,
he cannot raise such an objection on review. 4 See Rittgers v. Department of the
Army, 123 M.S.P.R. 31, ¶ 5 (2015) (rejecting the appellant’s argument on review
4
The appellant also claims that the administrative judge’s decision to allow the
deciding official to view the video constituted “clear evidence of [a] lack of
impartiality.” PFR File, Tab 1 at 4. As the appellant’s attorney confirmed that he
wished the deciding official to view the video at the hearing, we fail to see how this
ruling could possibly constitute evidence of bias against the appellant. HR ( statement
of the appellant’s representative during the testimony of the deciding official ).
Nonetheless, in making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15
(2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012); Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during
the course of a Board proceeding warrants a new adjudication only if her 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 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540 (1994)); Smets, 117 M.S.P.R.
164, ¶ 15. Under these circumstances, the appellant’s allegations on review, which do
not relate to any extrajudicial conduct by the administrative judge, do not overcome the
presumption of honesty and integrity that accompanies an administrative judge nor
establish that she shows a deep-seated favoritism or antagonism that would make fair
judgment impossible. Bieber, 287 F.3d at 1362-63.
6
that he did not have sufficient time to review new evidence when the appellant
did not object to the administrative judge’s order establishing the timelines);
Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (finding that an
appellant’s failure to object to the administrative judge’s ruling during the
proceedings below precluded him from doing so on petition for review).
¶9 The appellant also asserts on review that the administrative judge
mischaracterized the contents of the video, which he claims supports his
innocence in the altercation. PFR File, Tab 1 at 3-4. We disagree. The record
supports the administrative judge’s decision to sustain the first specification. ID
at 9. The agency alleged in specification 1 that the appellant told his coworker
that he would die, and that he would kill him, and t hat he yelled and called his
coworker derogatory names. IAF, Tab 6 at 49. Four witnesses provided
testimony and statements confirming that the appellant engaged in this very
behavior. Id. at 49, 63-66, 70; HR (testimony of material handler, testimony of
motor vehicle worker, testimony of warehouse worker, testimony of supply
technician). Further, although the appellant claims that the surveillance video is
critical, the video has no audio. HR (testimony of the deciding official). The
surveillance video, without audio, has little probative value and does not
outweigh the other evidence in the record which establishes, by preponderant
evidence, that the appellant engaged in the behavior described in specification 1 .
Accordingly, the administrative judge properly sustained that specification. ID
at 9.
The administrative judge was correct in finding that the agency established by
clear and convincing evidence that it would have removed the appellant absent
his whistleblower activity. 5
¶10 In a removal appeal, an appellant’s whistleblowing reprisal claim is treated
as an affirmative defense. Ayers v. Department of the Army, 123 M.S.P.R. 11,
5
We have reviewed the relevant legislation enacted during the pendenc y of this appeal
and have concluded that it does not affect the outcome of the appeal.
7
¶ 12 (2015). In such an appeal, once the agency proves the charges by a
preponderance of the evidence, the appellant must show by preponderant evidence
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the
disclosure was a contributing factor in the agency’s personnel action. Id. An
employee may demonstrate that a protected disclosure was a contributing factor
in a personnel action through the knowledge/timing test, i.e., circumstantial
evidence, such as evidence that the official taking 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. Mastrullo v. Department of Labor, 123 M.S.P.R.
110, ¶ 18 (2015). If the appellant establishes a prima facie case of
whistleblowing reprisal, then the burden of persuasion shifts to the agency to
show by clear and convincing evidence that it would have taken the same
personnel action absent any protected activity. Ayers, 123 M.S.P.R. 11, ¶ 5.
¶11 Here, the administrative judge found the following facts, which are
undisputed: the appellant, 4 or 5 years prior to his removal, made disclosures to
the proposing official that other employees in the warehouse engaged in improper
use of Government vehicles, removed pallets from the warehouse to be sold for
profit, made threats against him, and slept on duty. ID at 14. Subsequently, 7 or
8 months before the agency removed the appellant, he raised some of these
concerns to the deciding official, and specifically mentioned the proposing
official by name. ID at 14-16. Accordingly, the administrative judge found that
both the proposing and deciding officials had knowledge of the appellant’s
disclosures, and that, through the knowledge/timing test, his disclosures were a
contributing factor to his removal. ID at 15.
¶12 She therefore proceeded to the question of whether the agency proved by
clear and convincing evidence that it would have removed the appellant absent his
protected disclosures. Id. In determining whether an agency met its clear and
convincing burden, the Board will consider the following fact ors: the strength of
8
the agency’s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions agains t
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Looking at the first Carr factor, the administrative judge found that the agency
established that the appellant had engaged in serious misconduct and that it had
strong evidence to support the removal action. ID at 17. Regarding the second
Carr factor, the administrative judge found that deciding official had a very weak
motive to retaliate, and the proposing official had little motive to retaliate
because more recent inquiries were made into the appellant’s disclosures, and the
removal action was reviewed and sustained by the deciding official, who had no
motive to retaliate; thus, any motive from the proposing official would have been
greatly diminished. ID at 16. Finally, as for the third Carr factor, the
administrative judge found that the agency did not present any comparator
evidence, and thus this factor did not weigh in either party’s favor. ID at 17.
¶13 On review, the appellant challenges the administrative judge’s finding that
the proposing official had little motive to retaliate. PFR File, Tab 1 at 3.
Specifically, the appellant asserts that the proposing official had motive to
retaliate because the appellant had reported to the deciding official several
months prior to his removal that the proposing official was “involved in graft and
corruption with respect to the unauthorized selling of VA property.” Id. As an
initial matter, at no point while the matter was pending in front of the
administrative judge did the appellant assert that he disclosed to the deciding
official that the proposing official was involved in the “graft and corruption”
regarding the theft of agency property. Nevertheless, our reviewing court has
found that those responsible for the agency’s performance overall may be
motivated to retaliate against an individual who made protected disclosures, even
if they are not directly implicated by the disclosures, and even if they do not
9
know the whistleblower personally, as the criticism reflects on them in their
capacities as managers and employees. Whitmore v. Department of Labor,
680 F.3d 1353, 1370 (Fed. Cir. 2012). In other words, even if the responsible
agency official is outside the whistleblower’s chain of command, or is not
directly involved or named in the disclosure, it does not automatically prove that
the official had no motive to retaliate, especially if the whistleblower has made a
highly critical accusation of the agency’s conduct that ma y reflect on that
official’s capacity as manager or employee. Id. at 1371. Further, “[w]hen
applying the second Carr factor, the Board will consider any motivate to retaliate
on the part of the agency official who ordered the action, as well as any motiv ate
to retaliate on the part of other agency officials who influenced the decision.” Id.
(quoting McCarthy v. International Boundary and Water Commission,
116 M.S.P.R. 594, ¶ 62 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012)). Since
direct evidence of the proposing or deciding official’s retaliatory motive is
typically unavailable, Federal employees are entitled to rely on circumstantial
evidence to prove a motive to retaliate. Whitmore, 680 F.3d at 1371.
¶14 Here, we find that the evidence supports the administrative judge’s
determination that the proposing official had little motivation to retaliate against
the appellant. ID at 16. There is nothing in the record to suggest that any
inquiries into the appellant’s disclosures revealed misconduct by the proposing
official, and the proposing official appears to have suffered no conseque nces as a
result of those disclosures. Thus, it is unlikely that the proposing official would
have a motive to retaliate against the appellant 4 or 5 years later after disclosures
that resulted in no adverse consequences for him. Further, although the appellant
asserts on review that he mentioned the proposing official by name when
reiterating his disclosures to the deciding official, there is no evidence in the
record that establishes that the proposing official had any awareness of the
10
appellant’s most recent disclosure. 6 Accordingly, we agree with the
administrative judge that the proposing official had little motive to retaliate
against the appellant for his disclosures made years prior to the removal . ID
at 16.
¶15 As for the deciding official, we also agree with the administrative judge’s
conclusion that he had a very weak motive to retaliate. Id. In response to the
disclosures, the deciding official testified that he reviewed copies of complaints
from the appellant and other employees filed with the VA police dating back to
2000, discussed the disclosures with an Associate Director, and established that
the claims were unsubstantiated. HR (testimony of the deciding official).
There is nothing in the record to suggest that the appellant’s disclosu res directly
implicated the deciding official. However, consistent with the guidance issued by
our reviewing court discussed previously, an official may have a motive to
retaliate even though he was not directly implicated, because such criticism
reflects on him as a manager. See Whitmore, 680 F.3d at 1370. Nonetheless, we
still find little support for the proposition that the deciding official had a motive
to retaliate against the appellant. The deciding official was not implicated in the
appellant’s disclosures, and even more notably, the deciding official had only
been Director of the Medical Center for several months at the time of the
appellant’s protected disclosures. HR (testimony of the deciding official).
Furthermore, prior to his role as Director of the Long Beach Medical Center, the
deciding official was a Deputy Network Director in Vancouver, Washington, and
thus, was not even at the Long Beach Medical Center at the time the majority of
the appellant’s complaints occurred. HR (testimony of the deciding official).
6
Neither the deciding official nor the appellant testified that the proposing official
knew of the appellant’s disclosures to the deciding official. HR (testimony of t he
appellant, testimony of the deciding official). In their prehearing submissions, neither
party requested the proposing official as a witness at the hearing, and thus we do not
have any testimony from the proposing official as to his knowledge of the mo re recent
disclosures. IAF, Tab 11 at 5-6, Tab 12 at 3.
11
Therefore, because the majority of the appellant’s complaints encompassed the
time prior to his tenure as Director and his tenure at the Long Beach Medical
Center, these complaints would not have reflected poorly on him as a manage r.
Thus, we agree with the administrative judge that the deciding official had little
motive to retaliate against the appellant. ID at 16.
¶16 Finally, as for the third Carr factor, the Government bears the risk
associated with having no evidence on the record for this factor. Miller v.
Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016). Our reviewing
court has acknowledged that while the absence of any evidence relating to this
factor can effectively remove that factor from the analysis, the agency’s failure to
produce evidence on the third fact “may be at the agency’s peril.” Id. (quoting
Whitmore, 680 F.3d at 1374 (internal citations omitted)). Thus, lack of evidence
for the third factor may add little to the overall analysis, but , if anything, tends to
cut slightly against the agency. Miller, 842 F.3d at 1262. Here, the agency
produced no evidence as it relates to comparator evidence; accordingly, the third
factor adds nothing to the analysis, but, if anything, cuts slightly against the
agency. Nonetheless, given the strength of the agency’s evidence justifying the
removal of the appellant, along with the minimal motive to retaliat e by those
involved with the removal, we agree with the administrative judge that the agency
established by clear and convincing evidence that it would have removed the
appellant absent his whistleblower activities. ID at 17 -18.
The removal penalty is within the bounds of reasonableness.
¶17 The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Little v. Department of Transportation,
112 M.S.P.R. 224, ¶ 29 (2009). When all of the agency’s charges are sustained,
but some of the underlying specifications are not sustained, the agency’s penalty
determination is entitled to deference and only should be reviewed to determine
whether it is within the parameters of reasonableness. Id. The Board’s function
12
is not to displace management’s responsibility or to decide what penalty would
impose, but to assure that management’s judgement has been properly exercised
and that the penalty selected by the agency does not exceed the maximum limits
of reasonableness. Id.
¶18 The appellant asserts that the deciding official failed to consider two
Douglas factors, the consistency of the penalty with that imposed on the coworker
involved in the altercation, and the mitigating circumstances surrounding the
offense such as unusual job tension caused by the ongoing issues he had with
several supervisors. PFR File, Tab 1 at 4. The consistency of an agency-imposed
penalty with those imposed on other employees for the same or similar offenses is
one factor that Board will considered in determining whether the penalty is
reasonable. Voss v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013). When
analyzing a disparate penalty claim, broad similarity between employees is
insufficient to establish that they are appropriate comparators, and the relevant
inquiry is whether the agency knowingly and unjustifiably treated employees who
engaged in the same or similar offenses differently. Singh v. U.S. Postal Service,
2022 MSPB 15, ¶¶ 11-14. We do not believe the appellant has established that
his conduct and his coworker’s conduct were substantially similar. The record
demonstrates that the appellant was the aggressor of the altercation, including
threatening bodily harm to his coworker, which is consistent with the appellant’s
two previous disciplinary actions for disrespectful conduct. HR (testimony of the
deciding official, testimony of motor vehicle worker, testimony of warehouse
worker, testimony of supply technician); IAF, Tab 6 at 45, 49, 64-66, 70. The
appellant has not presented any corroborating evidence that his coworker had a
similar disciplinary history, or engaged in such egregious conduct during the
altercation as the appellant. Thus, we do not find that a reasonable person could
conclude the agency treated similarly situated employees differently.
¶19 As for the appellant’s claim of unusual job tension, the appellant asserts
that he had issues with several supervisors prior to this incident. PFR File, Tab 1
13
at 4. However, he has not explained how these tensions, with supervisors not
involved in the altercation, somehow caused him to engage in the misconduct or
influenced his conduct in any way. See Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305 (1981) (explaining that a relevant factor in determining the
appropriate penalty may be the mitigating circumstances that surround the
particular charged offense). Thus, we are unpersuaded by the appellant’s claim of
unusual job tensions as it does not explain his actions.
¶20 Instead, the deciding official considered the seriousness of the misconduct
and the ramifications on its personnel, which is consistent with the Board’s view
of placing primary importance upon the nature and seriousness of the offense and
its relation to the appellant’s positon, duties, and responsibilities. HR (testimony
of the deciding official); Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14
(2010). He also considered the appellant’s prior discipline, concern for the safety
of other employees, and the agency’s table of penalties. HR (testimony of the
deciding official). Therefore, we agree with the administrative judge that the
deciding official considered all relevant factors, and that the penalty of removal is
well within the bounds of reasonableness for the appellant’s misconduct. ID
at 20-21.
NOTICE OF APPEAL RIGHTS 7
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
7
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.
14
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 choice s 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 partic ular
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
15
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 th eir 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
16
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. 8 The court of appeals must receive your
8
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.
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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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.