Christine Cole v. Department of the Treasury

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTINE COLE, DOCKET NUMBER

Appellant, PH-0752-17-0006-I-1

v.

DEPARTMENT OF THE TREASURY, DATE: June 15, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Southworth, Esquire, and Terina Williams, Esquire, Atlanta,

Georgia, for the appellant.

Andrew M. Greene, Esquire, and John F. Dymond, Esquire, Atlanta,

Georgia, 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

dismissed her involuntary retirement appeal for lack of jurisdiction . Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 a GS-11 Program Analyst with the agency’s Internal

Revenue Service’s Small Business/Self-Employed (SBSE) field examination

office in Baltimore, Maryland. Initial Appeal File (IAF), Tab 9 at 12. In

April 2013, the appellant notified her manager that she was interested in

obtaining a “Hardship/[Post-of-Duty (POD)] Transfer” to South Carolina. IAF,

Tab 10 at 58, 64. The appellant’s manager referred her to the agency’s Hardship

Coordinator (HC), who provided the appellant with information concerning

hardship transfers. Id. at 64-65. After receiving this information, the appellant

sent the HC an email asking, inter alia, whether she would be able to request a

change in POD instead of a hardship transfer. Id. at 64.

¶3 In response, the HC notified the appellant via email that she did not know

“how a change in POD works” and that the appellant’s manager would handle that

matter. Id. at 63. The HC recommended that the appellant apply to the hardship

program and have her manager work on changing her POD at the same time. Id.

3

The HC also informed the appellant that she could withdraw from the hardship

program if her manager succeeded in changing the appellant’s POD. 2 Id.

¶4 On July 22, 2013, the appellant submitted Form 13442, “Application for

Hardship Reassignment/Relocation Request,” requesting a transfer to South

Carolina because her husband had accepted a position there. Id. at 67-71. With

her application, the appellant submitted a three-page statement entitled “Request

for change in POD and/or Hardship Relocation,” id. at 69-71, in which she

asserted that she was requesting a “Hardship Relocation or a POD transfer,” id.

at 69.

¶5 By letter dated August 14, 2013, the HC notified the appellant that her

hardship relocation application had been approved but cautioned that this

approval did not mean that she had a job offer. Id. at 73. Rather, the HC

explained, the appellant would be considered for future vacancies in her desired

POD with the status of a hardship eligible. Id.

¶6 In September 2013, the appellant purchased a house in South Carolina and

made arrangements to lease out her Baltimore home. Id. at 59. In October 2013,

the SBSE was reorganized. Id. As a result, its Baltimore field examination office

became part of a different region, and the appellant reported to a new chain of

command. Id.

¶7 The appellant moved to South Carolina in December 2013 and was on

annual leave the entire month. Id. at 19. When she returned to work, the agency

informed her that there were no positions available for her in South Carolina and

that she was required to report to Baltimore. Id. at 19, 125-26. Shortly

thereafter, the appellant’s union filed a grievance on her behalf . Id. at 53-62.

2

In her email, the HC also advised the appellant as follows: “The hardship program is

not a guarantee. You will be placed on a list and relocations are based on vacancies and

selection. . . . I cannot supply any time frames [for the transfer] since it is not a

guarantee that you will be placed.” IAF, Tab 10 at 63.

4

The grievance was denied in March 2014, id. at 49-50, and the union declined to

take the matter to arbitration, id. at 48.

¶8 During this time, the appellant was commuting from South Carolina to

Baltimore. Id. at 132. In April 2014, the appellant requested a temporary

telework agreement (TTA) to allow her time to move back to Baltimore. Id.

at 131-33. The agency agreed to a 90-day TTA, which required the appellant to

report to Baltimore 2 days each month. Id. at 23-24. The TTA began on June 10,

2014, and was repeatedly renewed because the appellant was having difficulty

relocating to Baltimore. Id. at 23-32. In June 2015, the agency notified the

appellant that her TTA, which was set to expire on June 30, 2015, would be

extended through December 31, 2015; however, there would be no further

extensions. Id. at 31-32; IAF, Tab 11 at 9.

¶9 The appellant submitted her retirement paperwork in September 2015 and

was scheduled to retire on December 31, 2015. IAF, Tab 23 at 21. On

December 21, 2015, the appellant sent an email to various agency officials

claiming that she was being forced to retire and that the agency had discriminated

against her based upon her age and disability (three herniated disks and arthritis

in her back and knees). IAF, Tab 10 at 18-22. On December 28, 2015, the

appellant’s supervisor offered to extend the TTA 30 additional days to allow the

agency time to review the issues raised in the email. IAF, Tab 7 at 95. The

appellant declined this offer, id. at 96, and retired as scheduled, IAF, Tab 9 at 12.

¶10 The appellant then filed an equal employment opportunity (EEO) complaint

alleging discrimination based on her age and disability and retaliation for her

prior EEO activity. Id. at 13-19. On August 31, 2016, the agency issued a final

decision finding no discrimination and notifying the appellant of her right to file

a mixed-case appeal with the Board. IAF, Tab 7 at 109-17.

¶11 The appellant timely filed an alleged involuntary retirement appeal with the

Board and requested a hearing. IAF, Tab 1 at 2, 4. The appellant alleged that her

retirement was involuntary because it was the result of age discrimination,

5

disability discrimination based on failure to accommodate, and reprisal for

protected EEO activity. Id. at 6, 13; IAF, Tab 26 at 4.

¶12 The administrative judge issued an order that informed the appellant of her

burden of proving the Board’s jurisdiction over her alleged involuntary retirement

claim and directed her to file evidence and argument that her retirement was

involuntary because of duress, coercion, or misrepresentation by the agency.

IAF, Tab 2. Both parties filed responses to the order. IAF, Tabs 7, 13. After

reviewing the parties’ submissions, the administrative judge determined t hat the

appellant had made a nonfrivolous allegation of Board jurisdiction sufficient to

entitle her to a hearing on the jurisdictional issue. IAF, Tab 14.

¶13 After holding a hearing, the administrative judge determined that the

appellant failed to prove that her retirement was involuntary and issued an initial

decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 36, Initial

Decision (ID). The appellant has filed a petition for review. Petition for Review

(PFR) File, Tab 1. The agency has filed a response in opposition to the petition.

PFR File, Tab 3.

ANALYSIS

The administrative judge correctly found that the appellant failed to prove that

her retirement was the product of misinformation.

¶14 Generally, the Board lacks the authority to review an employee’s decision

to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,

115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). An involuntary

retirement is tantamount to a removal, however, and is therefore subject to the

Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,

¶ 17 (2007). An appellant may overcome the presumption of voluntariness by

showing that her retirement was the product of misinformation or deception by

the agency or of coercive acts by the agency, such as intolerable working

conditions or the unjustified threat of an adverse action. SanSoucie v.

Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011). The Board addresses

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allegations of discrimination and reprisal in connection with an alleged

involuntary retirement only insofar as those allegations relate to the issue of

voluntariness and not whether they would establish discrimination or reprisal as

an affirmative defense. Vitale, 107 M.S.P.R. 501, ¶ 20. The touchstone of the

voluntariness analysis is whether, considering the totality of the circumstances,

factors operated on the employee’s decision-making process that deprived her of

freedom of choice. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12

(2010).

¶15 An appellant may establish involuntariness on the basis of misinformation

by showing that the agency provided misinformation upon which she reasonably

relied to her detriment. Paige v. U.S. Postal Service, 106 M.S.P.R. 299, ¶ 9

(2007). On appeal, the appellant claimed that her retirement was involuntary

because the agency informed her that her POD transfer to South Carolina had

been approved but then notified her that it had not been approved after she had

relocated to South Carolina in reliance on the agency’s misrepresentations. IAF,

Tab 7 at 6-7.

¶16 The administrative judge rejected this argument, finding that the appellant

failed to show that the agency misled her. ID at 10-16. The administrative judge

noted that the record did not contain any official documentation confirming the

agency’s approval of her POD transfer. ID at 11, 13-14. Instead, the only

official agency documentation approving the appellant’s transfer request was the

letter approving her application for a hardship transfer, which expressly stated

that such approval was not a current offer of employment but that she would be

considered for future vacancies in her desired POD if an appropriate position

became available there. ID at 10-11; IAF, Tab 10 at 73. The administrative

judge found that no one could reasonably rely on the approval of the hardship

transfer application to make an immediate move to the desired POD. ID at 11.

¶17 The administrative judge also found that, not only was there no official

agency documentation showing that the appellant’s POD transfer had been

7

approved, but there was also no testimony corroborating the appellant’s claim that

the agency had misrepresented to her that her POD transfer had been approved.

ID at 13. In that regard, the administrative judge noted that, although he had

approved as a witness the appellant’s former manager (i.e., her immediate

supervisor prior to the SBSE reorganization), the appellant chose not to call her

as a witness, 3 nor did she request as witnesses any other agency personnel that

purportedly approved her POD transfer. ID at 13 n.13; IAF, Tab 26 at 12-13,

Tab 33 at 4.

¶18 The administrative judge further found that, even if the agency did provide

the appellant with misinformation, it was “not a likely trigger” for her retirement,

as the misinformation was provided 2 years before she retired and she had the

opportunity to make specific choices in the interim. ID at 15-16 (citing Shoaf v.

Department of Agriculture, 260 F.3d 1336, 1342 (Fed. Cir. 2001) (stating that

while an action significantly preceding the purported involuntary action may well

be relevant, incidents closer in time are likely more relevant )). Accordingly, the

administrative judge concluded that the appellant’s arguments that her retirement

was involuntary due to misinformation were not persuasive. ID at 9.

¶19 On review, the appellant alleges that the administrative judge improperly

discounted numerous accounts of misinformation by the agency, and she asserts

that “[m]uch evidence” suggests that the agency misled her into believing that her

POD transfer had been approved. PFR File, Tab 1 at 6. In support of this claim,

the appellant cites various emails from agency personnel. Id. at 6-8; IAF, Tab 10

at 75-76, 78-79. We have reviewed these emails and find that, with the exception

of an August 21, 2013 email from the appellant’s former manager to a Facilities

3

The administrative judge noted that the appellant’s former manager could have

corroborated the appellant’s allegation that she mistakenly believed that the appellant’s

POD transfer had been approved and conveyed that incorrect information to the

appellant. ID at 13.

8

Project Specialist (FPS) for the agency, which we discuss further below, none of

the emails misrepresented that the appellant’s POD transfer had been approved. 4

¶20 We also find unavailing the appellant’s argument on review that, by

instructing the appellant to use the hardship transfer form to request a POD

transfer, the HC misled her into thinking that she was filing a POD transfer

request. PFR File, Tab 1 at 11. Although the appellant contends that her request

was for a POD transfer and not a hardship transfer, this claim is contradicted by

the statement that she submitted with her transfer application, in which she

explicitly asserted that she was requesting a hardship transfer or a POD transfer.

IAF, Tab 7 at 5, Tab 10 at 70, 127, Tab 27 at 88. In any event, even if the

appellant believed that she was requesting only a POD transfer when she

submitted the application form, the August 14, 2013 approval letter clearly stated

that she had been approved for a hardship transfer and that such a transfer was

contingent on the availability of a vacancy in her desired POD. IAF, Tab 10

at 73. Thus, even assuming arguendo that the HC misled the appellant into

believing that she was making a POD transfer request via the hardship transfer

form, given the clear language of the approval letter, it was not reasonable for her

to believe that she had been approved for a POD transfer.

¶21 In our view, the strongest evidence in support of the appellant’s claim that

agency officials misled her into believing that the agency had approved a POD

transfer is the aforementioned August 21, 2013 email from the appellant’s former

4

For example, the appellant alleges that the FPS misled her into believing that her POD

transfer had been approved because the FPS’s email response to the appellant’s former

manager’s email stating that she had approved the appellant’s POD transfer request and

asking him whether he would be involved in the appellant’s relocation did not mention

“job vacancies” but merely advised the appellant’s former manager how best to

coordinate the move. PFR File, Tab 1 at 7; IAF, Tab 10 at 78. Significantly, however,

the FPS was responding to the manager’s email stating that the appellant had received

approval for a POD transfer, and he had no reason to know that she instead had received

approval for a hardship transfer that was contingent on the availability of a vacancy in

the appellant’s desired POD. IAF, Tab 10 at 79. Thus, we find that the FPS’s email

was not misleading.

9

manager to the FPS. IAF, Tab 10 at 79. In the email, which contains the subject

line “POD Relocation,” the manager states that an employee in Baltimore

requested a POD transfer to Columbia, South Carolina, and that she and her

manager approved the request. Id. The appellant argues that, based on the

language acknowledging the approval of the POD transfer, she reasonably

believed that a POD transfer had been approved. PFR File, Tab 1 at 6-7.

¶22 Although the appellant’s former supervisor incorrectly states in her email

that she and her manager approved the appellant’s POD transfer request, for an

appellant to establish that her retirement was involuntary on the basis of

agency-supplied misinformation, she must not only show that the agency

misinformed her but also that she reasonably relied on that misinformation.

Paige, 106 M.S.P.R. 299, ¶ 9. Based on our review of the record, we find that the

appellant failed to meet this standard. As previously noted, the August 14, 2013

hardship transfer approval letter explicitly informed the appellant that she had

been approved for a hardship transfer and that such a transfer was contingent on

the availability of a vacancy in her desired POD . IAF, Tab 10 at 73. Also, prior

to receiving the hardship approval letter, the appellant was warned at least twice

that approval for a hardship transfer did not guarantee that a transfer would occur.

First, as noted above, in her April 18, 2013 email addressing the appellant’s

questions about applying for a transfer, the HC stated that approval of a hardship

transfer request was no guarantee that she would receive a transfer and that

relocations were based on vacancies and selection. Id. at 63. Second, the record

indicates that the appellant signed a Hardship Reassignment Checklist on July 29,

2013, which states as follows: “Placement by the hardship reassignment process

is not guaranteed. It is driven entirely on when a vacancy is available in the

requested POD.” Id. at 56.

¶23 Moreover, as noted by the administrative judge, on September 10, 2013,

i.e., about 3 weeks after the appellant’s former manager’s email to the FPS stating

that the appellant’s POD transfer request had been approved, the appellant sent an

10

email to a friend complaining that there were problems with her transfer and that

no one, including her manager, knew the requirements for effecting the transfer.

ID at 13; IAF, Tab 10 at 101. The administrative judge found, and we agree, that

this email suggests that the appellant was aware that her transfer was not a

certainty before she purchased a house in South Carolina and moved there. ID

at 13. Considering the totality of the circumstances, we find that, although the

appellant’s former supervisor’s email was arguably misleading, the appellant did

not establish by preponderant evidence that she reasonably relied upon

agency-supplied misinformation. Accordingly, based on our review of the record,

we see no reason to disturb the administrative judge’s finding that the appellant

failed to prove that her retirement was involuntary based on misinformation. ID

at 10-16.

The administrative judge correctly found that the appellant’s retirement was not

involuntary based on a failure to accommodate.

¶24 We also agree with the administrative judge that the appellant failed to

prove that she was forced to retire because the agency failed to accommodate her

disability. 5 ID at 16-20. A retirement may be rendered involuntary when an

agency improperly denies an employee’s request for a reasonable accommodation

of her disability. See Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R.

110, ¶ 7 (2010). The administrative judge found that the appellant never

requested an accommodation, either expressly or implicitly, and never initiated

the accommodation process even though she was familiar with it. ID at 20. In

support of this finding, the administrative judge noted that the appellant testified

that, although she was familiar with the formal accommodation process because

5

As the administrative judge noted in the initial decision, it is undisputed that the

appellant was a qualified individual with a disability (three herniated disks in her back

and arthritic knees) and that she had applied for and received an accommodation fr om

the agency in 2011 (a pass that allowed the appellant to access the Baltimore facility

through an alternate entrance and thereby avoid climbing the stairs at the main

entrance). ID at 2; IAF, Tab 10 at 141, Tab 26 at 5, Tab 27 at 5-6.

11

she previously had requested and received an accommodation, she never asked

anyone at the agency for an accommodation of her disability based on the

situation involving her transfer request, nor did she view the temporary TTAs as

accommodations for her disability. ID at 16 (citing IAF, Tab 35, Hearing

Compact Disc (testimony of the appellant)).

¶25 The appellant challenges this finding on review, arguing that she made

repeated requests for telework or other accommodations because of her disability;

however, management intentionally chose not to engage in the interactive

process. PFR File, Tab 1 at 8. This argument is completely at odds with the

appellant’s testimony that she never asked anyone in the agency for a reasonable

accommodation for her disability during the relevant time period . Further, the

documentary evidence in the record shows that the appellant’s requests for

telework or other accommodations were not based on her disability. Rather, as

previously discussed, the appellant initially requested temporary telework to

allow her time to move back to Baltimore. IAF, Tab 10 at 131-33. Similarly, the

appellant’s subsequent requests for telework or other accommodations were based

on her alleged difficulty relocating to Baltimore for various reasons unrelated to

her disability, such as problems evicting her tenant in Baltimore and difficulty

selling or renting her house in South Carolina. Id. at 20, 23-32.

¶26 The administrative judge also considered the appellant’s argument, which

she reiterates on review, that the agency should have known that she needed an

accommodation because agency officials were aware that she had a disability and

was having difficulty with the commute to Baltimore. ID at 9, 17-18; IAF,

Tab 27 at 75; PFR File, Tab 1 at 10-11. Specifically, the appellant contends that

the agency had an obligation to initiate the interactive process because her

supervisor was aware that she had a physical disability for which she had

received an accommodation in 2011 and therefore should have been aware of the

connection between her physical limitations and the problems she was having

with her commute, particularly in light of a February 2014 note from her doctor ,

12

which recommended that the appellant avoid train travel because prolonged

sitting and lifting her luggage aggravated her back pain. PFR File, Tab 1

at 10-11; IAF, Tab 7 at 37.

¶27 The administrative judge rejected this argument, finding that the appellant’s

prior accommodation had no conceivable relationship to her subsequent

circumstances. ID at 17. Regarding the appellant’s contention that her

supervisors should have been aware of the connection between her disability and

her difficulty with the commute, the administrative judge noted that, while her

supervisors acknowledged that the commute was difficult for her, a commute of

more than 500 miles would be problematic for anyone. Id.

¶28 The administrative judge also found that the February 6, 2014 note from the

appellant’s doctor was not an implicit request to begin the interactive process. ID

at 18. In making this finding, the administrative judge credited the appellant’s

supervisor’s testimony that the appellant submitted this note in support of her

request for 80 hours of sick leave over the appellant’s testimony that the purpose

of the note was not so limited. Id. The appellant has shown no reason to disturb

the administrative judge’s credibility findings. See Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must defer to an

administrative judge’s credibility determinations when they are based, explicitly

or implicitly, on observing the demeanor of witnesses testifying at a hearing; the

Board may overturn such determinations only when it has “sufficiently sound”

reasons for doing so). Thus, we agree with the administrative judge that the

appellant did not show that her retirement was involuntary because the agency

failed to accommodate her disability.

The administrative judge correctly found that the a ppellant failed to prove that

her retirement was involuntary based on coercion.

¶29 The appellant also alleged that the agency coerced her retirement by

requiring her to commute from Columbia, South Carolina, to Baltimore. IAF,

Tab 26 at 9-10. To establish involuntariness on the basis of coercion, an

13

employee must show that the agency effectively imposed the terms of her

retirement, she had no realistic alternative but to retire, and her retirement was

the result of improper acts by the agency. Staats v. U.S. Postal Service, 99 F.3d

1120, 1124 (Fed. Cir. 1996). The doctrine of coerced involuntariness is “a

narrow one” and does not apply if the employee retires because she “does not

want to accept [measures] that the agency is authorized to adopt, even if those

measures make continuation in the job so unpleasant . . . that [s]he feels that [s]he

has no realistic option but to leave.” Id. “[T]he fact that an employee is faced

with an unpleasant situation or that [her] choice is limited to two unattractive

options does not make [her] decision any less voluntary.” Id.

¶30 Here, the administrative judge found that the appellant had at least three

choices as of December 31, 2015: (1) to retire or find another job; (2) to sell or

rent her South Carolina home and move back to her Baltimore home; and (3) to

travel to Baltimore from Columbia to work 2 or 3 days each week. ID at 21. The

administrative judge found that, although the appellant did not find any of these

options palatable, her retirement was voluntary because she had a choice as to

whether to retire. Id.; see Staats, 99 F.3d at 1123 (finding that the fact that the

petitioner “perceived his situation to be an unpleasant one because he did not

wish to relocate . . . does not make his decision to retire . . . involuntary”).

¶31 The appellant challenges this finding on review, arguing that the evidence

does not support the administrative judge’s conclusion that she had alternatives to

retirement available. PFR File, Tab 1 at 13. In particular, the appellant contends

that she was forced to retire because relocating to Baltimore “was not realistic”

due to the cost of moving and the financial consequences of terminating the lease

on her Baltimore property early. Id.

¶32 This argument is unavailing. Although the appellant claims she was forced

to retire because relocating to Baltimore was too expensive, she had the option of

selling or renting her South Carolina home, which would have lessened the

financial burden of moving back to Baltimore. Further, the appellant’s retirement

14

was not the result of improper acts by the agency. Rather, as the administrative

judge noted, the appellant’s circumstances were self-imposed, given that she

moved to South Carolina without first securing a proper transfer. ID at 17.

Accordingly, we agree with the administrative judge that the appellant failed to

prove that her retirement was involuntary, and we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 6

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 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

6

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.

15

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 particu lar

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. 420 (2017). If you have a representative in this case,

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

16

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

17

(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).

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.

7

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.

18

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.