Opinion

Michael Yeksigian v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jun 26, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.5%

stating that a mere policy dispute does not amount to a protected disclosure within the meaning of the whistleblower protection statutes

How later courts described this case

stating that a mere policy dispute does not amount to a protected disclosure within the meaning of the whistleblower protection statutes

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL J. YEKSIGIAN, DOCKET NUMBERS

Appellant, DC-1221-17-0767-W-2

DC-0752-15-1188-I-4

DEPARTMENT OF DEFENSE,

Agency. DATE: June 26, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Raymond C. Fay, Esquire, and Jessica T. Ornsby, Esquire,

Washington, D.C., for the appellant.

James Vietti, Esquire, Lisa Marie Golden, Esquire, Lundi McCarthy

Shafiei, Esquire, and Supraja T. Murali, Esquire, Washington, D.C., 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 in these

joined individual right of action (IRA) and removal appeals , which denied his

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

request for corrective action and affirmed his removal. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

erroneous interpretation of statute or regulation or the erron eous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review. Except as

expressly MODIFIED by this Final Order to vacate the portion s of the initial

decision finding that the agency proved by clear and convincing evidence that it

would have taken the same actions in the absence of the appellant’s purported

disclosures and to merge the failure to follow leave procedures charge with the

absence without leave (AWOL) charge, we AFFIRM the initial decision.

BACKGROUND

¶2 Beginning in April 2011, the appellant served as a Program Manager with

the Program Analysis and Evaluation Office (PA&E) of the Pentagon Force

Protection Agency (PFPA), a component of the Department of Defense (DoD).

Yeksigian v. Department of Defense, MSPB Docket No. DC-1221-17-0767-W-2,

Appeal File (W-2 AF), Tab 18 at 5-6. Shortly after he started working at PFPA,

the appellant became concerned that it lacked the proper acquisition authority,

i.e., the authority to purchase goods and contract for services. W-2 AF, Hearing

Transcript, Day 1 (HT1) at 248-49 (testimony of the appellant). He investigated

the matter and learned that PFPA’s charter did not provide the PFPA Director

with acquisition authority for PFPA programs and the Office of the Under

Secretary of Defense for Acquisition, Technology and Logistics (AT&L), a

separate DoD agency, had not issued a letter delegating acquisition authority to

PFPA. Id. at 251-52, 265-66; W-2 AF, Tab 19 at 420. The appellant also learned

that AT&L had issued a directive delegating acquisition authority to the

Acquisition Directorate (AD) of another DoD component, the Washington

Headquarters Service (WHS), which had acquisition authority for both WHS and

PFPA. W-2 AF, Tab 19 at 395, Tab 20 at 23.

¶3 On March 14, 2014, the appellant sent an email to PFPA’s Chief of Staff

conveying his “initial thoughts” on the acquisition authority issue. W-2 AF,

Tab 20 at 30. The appellant argued that PFPA should secure a delegation of

acquisition authority from AT&L because “PFPA is a complete and separate

entity” from WHS and, absent such a delegation, PFPA would require WHS’s

permission to manage its programs. Id. The appellant stated, “I don’t think the

[PFPA] Director should have to go to WHS to manage PFPA programs.” Id.

¶4 On March 25, 2014, the appellant sent an email to various agency officials,

including his immediate supervisor and PFPA’s Director and Deputy Director,

stating that PFPA’s lack of contracting authority “possess [sic] a dilemma as to

who is legally responsible for decisions associated with the PFPA acquisition

process.” W-2 AF, Tab 20 at 31. The appellant asserted that he had discussed

this matter with individuals in AT&L and “it was recommend [sic]” 2 that PFPA

obtain a memorandum from AT&L delegating acquisition authority to the PFPA

Director because PFPA is a completely separate entity from WHS. Id. The

appellant claimed that such a memorandum would make it clear that “the PFPA

Director is the Senior Procurement Executive for [PFPA] and is solely

It is unclear whether this recommendation was made by AT&L personnel or the

appellant.

responsible for the acquisition decisions associated with the procurement of

goods and services for [PFPA].” Id.

¶5 On April 14, 2014, the appellant met with AT&L’s Acting Deputy Director

for Contract Policy and International Contracting (Contracting ADD) to discuss

the appellant’s concerns about PFPA’s acquisition authority. W-2 AF, Tab 30

at 24. In an email exchange with the Contracting ADD later that week, the

appellant asked whether there was “clear guidance of what programs would

require Delegated Acquisition Authority from AT&L.” Id. at 23. In response, the

Contracting ADD recommended that the appellant consult DoD Directive

5000.01, which defines the term “acquisition program” as follows: “directed,

funded effort that provides new, improved, or continuing materiel, weapon or

information systems or service capability in response to an approved need.” Id.

at 22. The Contracting ADD explained that PFPA would need acquisition

authority if it was going to acquire any of the defined capabilities , but not if it

was buying a commercial product. Id. at 22-23.

¶6 On June 24, 2014, the appellant called in to work sick and went for a walk.

HT1 (testimony of the appellant). Later that morning, local police stopped the

appellant for allegedly following a woman on foot for about one mile while

taking multiple photographs with his telephone as she attempted to evade him.

W-2 AF, Tab 42 at 6. The police officers noted that, during the stop, the

appellant did not provide coherent answers to their questions a nd was singing to

himself and dancing on the sidewalk. Id. That afternoon, the appellant went to

the building where he worked and told an AT&L employee that he had

information about someone “wanting to blow up” Arlington, Virginia. Id. at 18.

¶7 Later that day, PFPA’s Acting Assistant Director for Mission Integration

(Mission Integration AAD) issued a memorandum notifying the appellant that he

was being placed on administrative leave (AL memo) and explaining the

conditions of his administrative leave. Yeksigian v. Department of Defense,

MSPB Docket No. DC-0752-15-1188-I-1, Initial Appeal File (I-1 IAF), Tab 9

at 86-87. The AL memo stated that the appellant was required to contact the

Mission Integration AAD by 8:30 a.m. daily to ask if he was to report for duty,

and that he was expected to remain available by telephone during his normal work

hours and be ready and available to return to work within 2 hours of being

notified to do so. Id. at 86. The AL memo also stated that if the appellant needed

to take sick or annual leave—during which time he would not be available by

telephone or available to return to work—he was required to request leave from

the Mission Integration AAD and would be notified if it was approved. Id.

Lastly, the AL memo warned the appellant that his failure to comply with proper

leave procedures could result in his being charged AWOL. Id.

¶8 In September of 2014, the appellant traveled to France, and he was on

approved leave from September 2 through October 4, 2014. W-2 AF, Tab 18

at 21, 23, 27. On September 17, 2014, the appellant telephoned his supervisor

and inquired about taking medical/sick leave. Id. at 30. The next day, an

employee with PFPA’s Human Capital Program Management Directorate emailed

the appellant an Office of Personnel Management (OPM) Form 71, “Request for

Leave or Approved Absence,” and provided him with information related to the

Family and Medical Leave Act of 1993 (FMLA). I-1 IAF, Tab 10 at 41. In the

email, the employee notified the appellant that he was required to submit a

completed OPM Form 71 for each pay period during which he sought to invoke

his FMLA rights, along with supporting medical documentation and an expected

“return to duty” date. Id.

¶9 On October 1, 2014, the appellant notified his supervisor via email that he

was scheduled to remain in Paris until the middle of November and wanted to use

sick leave for the rest of his time abroad because he had used nearly all of his

annual leave. W-2 AF, Tab 18 at 28. In response, the appellant’s supervisor sent

the appellant an email on October 3, 2014, notifying him that he had exhausted

his regular available leave on or about September 26, 2014, that his approved

leave would end on October 4, 2014, and that the period between September 26

and October 4, 2014, would be recorded as Leave Without Pay (LWOP). Id.

¶10 In the email, the appellant’s supervisor informed the appellant that sick

leave usage is not intended to supplement exhausted annual leave , and explained

that the appellant could request sick leave and/or FMLA leave for certain reasons,

including personal medical care needs. Id. at 27. The appellant’s supervisor also

informed the appellant that, if he applied for FMLA leave or more than 3 calendar

days of sick leave, he was required to submit certain documentation, including a

completed OPM Form 71, by October 17, 2014, and that PFPA would decide

whether to approve his request for extended sick leave after it received the

documentation. Id. Finally, the appellant’s supervisor stated that the appellant

was expected to fully comply with the requirements of the AL memo; thus, if he

was not available to report for duty on Monday, October 6, 2014, he would be

charged with AWOL and subject to the full range of penalties for adverse

disciplinary actions, including removal. Id.

¶11 On October 6, 2014, the appellant sent his supervisor an email stating that

he was taking sick leave for the day because he was not feeling well. W-2 AF,

Tab 18 at 32. In his email response, the appellant’s supervisor notified the

appellant that he was being placed in an AWOL status effective October 6, 2014 ,

and that he had three options: (1) return to the United States and abide by the

directions in the AL memo; (2) provide sufficient documentation to support a

request for sick leave; or (3) be placed on AWOL and subject to future

disciplinary action, up to removal from Federal service. Id. at 31. The

appellant’s supervisor also provided the appellant an OPM Form 71 and asked

him to complete the form and return it with supporting documentation to

substantiate the need for sick leave. Id.

¶12 On October 7 and 8, 2014, the appellant notified his supervisor by email

that he was “[s]till not feeling well” and would continue to take sick leave. W-2

AF, Tab 18 at 38-40. On October 9, 2014, the appellant sent his supervisor an

email stating that he did not feel safe in the United State s and would obtain the

required documentation so that he could start taking his “stockpile of sick leave.”

Id. at 42.

¶13 On October 17, 2014, the appellant emailed his supervisor an unsigned

OPM Form 71, requesting 232 hours of accrued sick leave under the FMLA for

September 29 to November 7, 2014. I-1 IAF, Tab 9 at 128. The appellant did not

submit any medical documentation, but stated in his email that his physician’s

office would send supporting documentation to PFPA . Id.

¶14 On November 6, 2014, the appellant’s supervisor sent the appellant a

memorandum inquiring about his intention to return to duty. I-1, IAF, Tab 9

at 131-32. In the memorandum, the appellant’s supervisor ordered the appellant

to comply with the requirements of the AL memo or advise the supervisor in

writing of his intent to remain employed at PFPA by November 12, 2014. Id.

at 132. The memorandum also informed the appellant that he had three options:

(1) return to duty by November 12, 2014, if medically able to do so; (2) request a

reasonable accommodation to effectively enable him to perform the essential

functions of his position; or (3) submit a written resignation letter to the

supervisor by close of business on November 12, 2014, if he did not intend to

return to work. Id. at 132. In his memorandum, the appellant’s supervisor also

warned the appellant that he intended to propose his separation from Federal

service if he failed to exercise any of these options and inform the supervisor

which option he had chosen by November 12, 2014. Id. The appellant did not

exercise any of these options by that date; however, he returned to administrative

leave on November 18, 2014. Id. at 28.

¶15 On March 20, 2015, the agency issued a notice proposing to remove the

appellant based on three charges: (1) AWOL; (2) failure to follow leave

procedures; and (3) failure to follow supervisory instructions. I-1 IAF, Tab 9

at 41-47.

¶16 The AWOL charge alleged that the appellant was AWOL between October 6

and November 17, 2014. Id. at 41.

¶17 In support of the charge of failure to follow leave procedures, the agency

alleged that, pursuant to the AL memo, the appellant was required to follow

established leave procedures if he was unavailable to return to work within two

hours of being notified to do so. Id. It further alleged that, between October 6

and November 17, 2014, the appellant was in Paris, France, and therefore,

unavailable to return to duty at the Pentagon within 2 hours of being notified to

do so. Id. The agency asserted that, consequently, the appellant’s administrative

leave status was suspended and he was required to comply with proper leave

procedures to request leave to cover all duty hours during which he was

unavailable. Id.

¶18 In support of the third charge, failure to follow supervisory instructions, the

agency alleged that, in a memorandum dated November 6, 2014, the appellant

was ordered to either comply with the AL memo or advise his supervisor in

writing of his intent to remain employed with PFPA by November 12, 2014;

however, the appellant did not respond in writing prior to that date. Id.

¶19 On March 23, 2015, the appellant filed a complaint with the Office of

Special Counsel, alleging that the agency took various actions against him in

reprisal for his whistleblowing, including banning him from communicating with

AT&L and placing him on administrative leave. Yeksigian v. Department of

Defense, MSPB Docket No. DC-1221-17-0767-W-1, Initial Appeal File

(W-1 IAF), Tab 1 at 32. The appellant subsequently amended the complaint to

allege that the agency also retaliated against him for his whistleblowing by

proposing his removal. W-1 IAF, Tab 7 at 20.

¶20 On April 1, 2015, the appellant submitted a written reply to the proposed

removal. I-1 IAF, Tab 9 at 49-67. On August 18, 2015, the deciding official

issued a decision sustaining all of the charges and finding removal warranted. Id.

at 35-38. The agency removed the appellant from his position effective

August 28, 2015. Id. at 33-34.

¶21 On September 25, 2015, the appellant filed a Board appeal challenging his

removal and raising an affirmative defense of whistleblower retaliation. I-1 IAF,

Tab 1 at 6. He also filed an IRA appeal with the Board. W-1 IAF, Tab 1. The

administrative judge joined the IRA and removal appeals. W-1 IAF, Tab 6.

¶22 Following a 3-day hearing, the administrative judge issued an initial

decision that denied the appellant’s request for corrective action in his IRA

appeal and affirmed the appellant’s removal. W-2 AF, Tab 79, Initial Decision

(ID). In the IRA appeal, the administrative judge found that the appellant failed

to establish that he made a protected disclosure and, therefore, failed to establish

a prima facie case of whistleblower retaliation. ID at 11 -16. In the alternative,

the administrative judge found that, even if the appellant had established a prima

facie case of whistleblower retaliation, he was not entitled to corrective action

because the agency proved by clear and convincing evidence that it would have

taken the same actions in the absence of the protected disc losure. ID at 16-22.

¶23 In the removal appeal, the administrative judge found that the agency

proved all of the charges by preponderant evidence, ID at 23-27, that there is a

nexus between the charges and the efficiency of the service, ID at 28, and that the

penalty of removal is reasonable, ID at 28-30. The administrative judge also

found that the appellant failed to prove his affirmative defense. ID at 30-32.

¶24 The appellant has filed a petition for review, the agency has filed a response

in opposition to the petition for review, and the appellant has filed a reply to the

agency’s response. MSPB Docket No. DC-1221-17-0767-W-2, Petition for

Review (PFR) File, Tabs 5, 9, and 12.

ANALYSIS

IRA Appeal

The administrative judge correctly found that the appellant failed to

establish that he made a protected disclosure.

¶25 After establishing the Board’s jurisdiction in an IRA appeal, the appellant

must establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that: (1) he made a protected disclosure described under

5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1);

Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). If the

appellant proves that his protected disclosure or activity was a contributing factor

in a personnel action taken against him, the agency is given the opportunity to

prove, by clear and convincing evidence, that it would have taken the same

personnel action in the absence of the protected disclosure or activity. 5 U.S.C.

§ 1221(e)(1)-(2); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016).

¶26 A protected disclosure is any disclosure of information that the appellant

reasonably believes evidences any violation of any law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Salerno,

123 M.S.P.R. 230, ¶ 2 n.1. The proper test for assessing whether a protected

disclosure occurred is an objective one: Could a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

employee reasonably conclude that the actions of the government evidence one of

the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A)? Salerno,

123 M.S.P.R. 230, ¶ 6. General philosophical or policy disagreements with

agency decisions or actions are not protected unless they separately constitute a

protected disclosure of one of those categories of wrongdoing. See 5 U.S.C.

§ 2302(a)(2)(D); White v. Department of the Air Force, 391 F.3d 1377, 1382

(Fed. Cir. 2004) (stating that a mere policy dispute does not amount to a protected

disclosure within the meaning of the whistleblower protection statutes) ; Webb v.

Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015).

¶27 As noted in the initial decision, at issue in this appeal is the appellant’s

disclosure to various agency officials that PFPA lacked acquisition authority to

purchase goods and services. ID at 9 (citing W-1 IAF, Tab 8). In assessing

whether this disclosure was protected, the administrative judge considered the

relevant documentary evidence and hearing testimony, including the testimony of

the appellant, the Contracting ADD, and PFPA’s Acquisitions and Requirements

Chief (AR Chief), whose division is responsible for all PFPA acquisitions and

procurements. ID at 12-15; W-2 AF, Hearing Transcript, Day 3 (HT3) at 854

(testimony of the AR Chief).

¶28 During his hearing testimony, the AR Chief explained that, pursuant to the

policies and regulations governing PFPA’s procurement process, PFPA procures

goods and services through the contracting office of WHS/AD, which has

acquisition and procurement authority for PFPA. 3 HT3 at 856-59 (testimony of

the AR Chief). In particular, the AR Chief noted that a July 21, 2014

memorandum from AT&L’s Director of Defense Procurement and Acquisition

During the hearing and in his email correspondence with the appellant, the

Contracting ADD distinguished between acquisition and procurement. HT3 at 830-32

(testimony of the Contracting ADD); W-2 AF, Tab 30 at 22-23. The Contracting ADD

testified that acquisition is a broader function than procurement, as procurement

officials contract for goods and services on behalf of DOD, whereas officials with

acquisition authority determine which goods and services will be acquired. HT3 at 830

(testimony of the Contracting ADD). He further testified that commercial goods and

services are not subject to the acquisition process. Id. at 831-32. Similarly, in an

April 17, 2015 email to the appellant, the Contracting ADD explained that PFPA would

not need acquisition authority to purchase a commercial product, as that action would

be considered procurement, not acquisition. W-2 AF, Tab 30 at 22-23.

Policy delegates PFPA acquisition authority to the Director of WHS’s Acquisition

and Procurement Office (APO) – the lead contracting officer at WHS. Id. at 867;

W-2 AF, Tab 51 at 157. The AR Chief also testified that PFPA’s charter states

that WHS will procure items for PFPA. HT3 at 859 (testimony of the AR Chief);

W-2 AF, Tab 19 at 420. The AR Chief further testified that DoD Directive

5000.01 does not apply to PFPA because the DoD 5000 series of regulation s

governs major weapons systems, such as tanks and airplanes, which PFPA does

not acquire. HT3 at 862-63 (testimony of the AR Chief). The administrative

judge credited the AR Chief’s testimony, finding that it was supported by the

evidence in the record. ID at 14.

¶29 The administrative judge further found that the agency provided sufficient

documentation to show that PFPA’s acquisition authority was proper. ID at 14.

Specifically, he noted that: (1) a February 9, 2006 memorandum from the WHS

Director delegated PFPA acquisition authority to the WHS/APO director; and

(2) a March 14, 2011 4 memorandum from the Secretary of Defense stated, “WHS

will manage all [Office of the Secretary of Defense] contracting under a single

Enterprise Contracting Office [SECO].” ID at 14-15; W-2 AF, Tab 19 at 395,

405. The administrative judge found that the appellant was aware, or should have

been aware, of those documents. 5 ID at 15.

¶30 Based on the documentary evidence and hearing testimony, the

administrative judge found that the appellant’s disclosure that PFPA lacked

acquisition authority constituted a policy dispute about whether WHS or PFPA

The initial decision incorrectly identifies the date of the memorandum as May 14,

2011. ID at 14; W-2 AF, Tab 19 at 349.

The record demonstrates that the appellant was aware of the March 14, 2011

memorandum, i.e., the SECO directive. In a January 14, 2014 email addressing the

appellant’s questions regarding PFPA’s acquisition authority, the Policy Officer for

WHS/AD informed the appellant that the SECO directive provides that WHS/AD is th e

single acquisition activity responsible for WHS and PFPA. W-2 AF, Tab 20 at 23.

should have acquisition authority for PFPA, and that the appellant did not

reasonably believe that he had disclosed a violation of law, rule, or regulation.

ID at 12, 15. The administrative judge therefore found that this disclosure was

not protected. ID at 12.

¶31 The appellant challenges these findings on review. PFR File, Tab 5

at 16-19. The appellant states that, in finding that his disclosure was not

protected, the administrative judge relied on the AR Chief’s testimony that DoD

Directive 5000.01 applies only to major weapons systems, which PFPA does not

acquire. PFR File, Tab 5 at 18; ID at 14; HT3 at 862-63 (testimony of the AR

Chief). The appellant asserts that he examined the same directive and reasonably

concluded that it did not apply only to weapons systems. 6 Therefore, the

appellant seems to contend his disclosure about PFPA’s lack of acquisition

authority was protected because he reasonably believed that DoD Directive

5000.01 required PFPA to have acquisition authority. PFR File, Tab 5 at 18.

¶32 We find this apparent argument unpersuasive. When the Contracting ADD

recommended that the appellant consult the definition of “acquisition program”

set forth in DoD Directive 5000.01 to determine whether PFPA would need

acquisition authority for any of its programs, he specifically stated that PFPA

would not need acquisition authority to buy a commercial product. W-2 AF,

Tab 30 at 23. During the hearing, the AR Chief testified that, to his knowledge,

PFPA does not acquire non-commercial goods or services. HT3 at 861-62

The appellant further argues on review that the administrative judge’s finding that the

Contracting ADD agreed with the AR Chief’s testimony about the major weapons

systems is not borne out by the Contracting ADD’s testimony and writing. PFR File,

Tab 5 at 19. The administrative judge did not make such a finding, however. The only

statement in the initial decision regarding the Contracting ADD’s testimony about

PFPA’s acquisition authority is that he testified that it was possible that PFPA had the

proper delegation of authority in place to acquire goods and services. ID at 14 (citing

HT3 at 844 (testimony of the Contracting ADD)). We have reviewed the Contracting

ADD’s testimony and find that the administrative judge did not mischaracterize it, as

the appellant suggests. HT3 at 844 (testimony of the Contracting ADD).

(testimony of the AR Chief). The appellant did not offer any evidence that PFPA

acquires anything other than commercial goods and services. Given these

circumstances, we find that the appellant did not reasonably believe that PFPA’s

lack of acquisition authority violated DoD Directive 5000. 01.

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

finding that his claim that PFPA lacked acquisition authority was merely a policy

dispute about which DoD agency or component should have acquisition authority

for PFPA. PFR File, Tab 5 at 18. The appellant asserts that his claim was not

based on whether another agency could exercise acquisition authority for PFPA.

Id. Rather, he contends, his claim was based on the premise that he was tasked

with investigating whether PFPA had the ability to exercise that authority for

itself, and he found no evidence that PFPA had that authority. Id. at 18.

¶34 This argument is difficult to decipher. The appellant seems to argue that, in

stating that PFPA did not have acquisition authority, he was not disagreeing with

the policy delegating WHS acquisition authority for PFPA, but was simply

disclosing the results of his investigation as to whether PFPA was authorized to

exercise acquisition authority for itself. Id.

¶35 The record indicates, however, that the appellant was not merely reporting

that WHS had acquisition authority for PFPA; he was disagreeing with the

decision to delegate that authority to WHS based on his view that the PFPA

Director should not “have to go to WHS to manage PFPA programs.” W-2 AF,

Tab 20 at 30. In any event, even assuming that the appellant’s disclosure

concerning PFPA’s lack of acquisition authority does not constitute a policy

dispute about whether another agency should exercise acquisition authority for

PFPA, but is merely a statement that PFPA does not have that authority, he has

not shown by preponderant evidence that he reasonably believed that PFPA’s lack

of contracting authority evidenced one of the categories of wrongdoing set forth

in 5 U.S.C. § 2302(b)(8)(A).

¶36 Because we have found that the appellant failed to prove that he made a

protected disclosure, it is unnecessary to decide whether the agency proved by

clear and convincing evidence that it would have taken th e personnel actions at

issue in the IRA appeal in the absence of his disclosure. See Clarke v.

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (holding that

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

made a finding that the appellant established his prima facie case), aff’d per

curiam, 623 F. App’x 1016 (Fed. Cir. 2015). 7 Accordingly, we vacate the

administrative judge’s findings concerning whether the agency met its clear and

convincing burden.

Removal Appeal 8

We modify the initial decision to merge the failure to follow leave

procedures charge into the AWOL charge.

¶37 As noted above, the agency charged the appellant with both AWOL and

failure to follow leave procedures. I-1 IAF, Tab 9 at 41. The Board will merge

charges if they are based on the same conduct and proof of one charge

automatically constitutes proof of the other charge. Powell v. U.S. Postal

Service, 122 M.S.P.R. 60, ¶ 10 (2014). Here, the agency charged the appellant

with failure to follow leave procedures for the same dates that he was ch arged

with AWOL, and the AWOL charge was based on his failure to follow proper

leave procedures to cover his absences on those dates. I -1 IAF, Tab 9 at 35-36.

Therefore, we find it appropriate to merge these two charges. See McNab v.

Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014) (finding that the

Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the

Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit

Systems Protection Board, 880 F.3d 913, 923-25 (7th Cir. 2018). Thus, its

disagreement does not implicate the basis for which we cite Clarke here.

On review, the appellant does not challenge the administrative judge’s finding that the

agency proved the charge of failure to follow supervisory instructions. See generally

PFR File, Tab 5; ID at 27. We discern no basis upon which to disturb that finding.

administrative judge properly merged into the AWOL charge specific instances of

failure to follow leave restriction letter procedures that were also listed under the

AWOL charge); Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R.

625, ¶ 6 (1999) (merging charges of failure to follow leave-requesting procedures

and AWOL when the charge of AWOL was based solely on the appellant’s failure

to follow leave-requesting procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001),

overruled on other grounds as recognized in Pickett v. Department of

Agriculture, 116 M.S.P.R. 439, ¶ 11 (2011). Because the failure to follow leave

procedures charge merges into the AWOL charge, proof of the AWOL charge will

constitute proof of the failure to follow leave procedures charge. See Powell,

122 M.S.P.R. 60, ¶ 10.

The administrative judge correctly found that the agency proved the AWOL

charge by preponderant evidence.

¶38 To prove an AWOL charge, an agency must demonstrate that the employee

was absent without authorization and, if the employee requested leave, that the

request was properly denied. Savage v. Department of the Army, 122 M.S.P.R.

612, ¶ 28 n.5 (2015), overruled on other grounds by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 23-25. In sustaining the AWOL

charge, the administrative judge found as follows: (1) it is undisputed that the

appellant was absent from work between October 6 and November 17, 201 4;

(2) the agency demonstrated that the appellant’s absence during this time was not

authorized; and (3) the agency properly denied the appellant’s requests for sick

leave and FMLA leave. ID at 23-26.

¶39 The appellant argues on review that it is “legally imp ossible” for an

employee to be absent from work while on administrative leave because he is not

required to be at work. PFR File, Tab 5 at 32. Similarly, he contends that an

employee on administrative leave cannot be absent from work without

authorization, as his absence is authorized by virtue of his placement on

administrative leave. Id.

¶40 These arguments are unavailing. As previously discussed, the AL memo set

forth the conditions of the appellant’s administrative leave —including the

requirement that he be available to return to duty with 2 hours’ notice. I -1 IAF,

Tab 9 at 86. In addition, the AL memo warned the appellant that if he failed to

satisfy this requirement, he would no longer be on administrative leave. Id. at 86.

¶41 Although the appellant’s approved leave ended on October 4, 2014, he

remained in France until mid-November 2014 and thus was not available to return

to duty with 2 hours’ notice. W-2 AF, Tab 18 at 28. Consequently, pursuant to

the terms of the AL memo, he was no longer in an administrative leave status as

of Monday, October 6, 2014. I-1 IAF, Tab 9 at 86.

¶42 Further, the record clearly shows that the appellant’s absence during the

period covered by the AWOL charge was not authorized. For example, in his

November 6, 2014 memorandum inquiring about the appellant’s intent to return to

duty, the appellant’s supervisor explicitly informed the appellant that his absence

since October 6, 2014, was not authorized. Id. at 132.

¶43 In evaluating whether the agency properly denied the appellant’s requests

for sick leave and FMLA leave, the administrative judge considered the agency ’s

leave policy, which is set forth in Administrative Instruction 67 (AI 67). ID

at 24-25; I-1 IAF, Tab 10 at 47-82, Tab 11 at 4-17. The administrative judge

noted that AI 67 provides that an employee requesting sick leave or FMLA leave

must submit a completed OPM Form 71 to his leave-approving official in advance

of the requested absence. ID at 25; I-1 IAF, Tab 10 at 62, Tab 11 at 9. For sick

leave requests, the official is entitled to receive administratively acceptable

medical documentation in support of the request. ID at 25; I-1 IAF, Tab 10 at 63.

Similarly, an employee requesting FMLA leave may be required to submit

administratively acceptable medical documentation to substantiate the FMLA

entitlement. ID at 25; I-1 IAF, Tab 11 at 9.

¶44 The administrative judge found that the agency notified the appellant of the

requirement to submit a completed OPM Form 71 to request sick leave or FMLA

leave, and the requirement to provide medical documentation; however, the

appellant failed to provide a signed, completed OPM Form 71 and failed to

provide medical documentation to justify the approval of sick leave. ID at 25

(citing I-1 IAF, Tab 10 at 34-35). Therefore, the administrative judge found, the

agency was justified in denying the appellant sick leave and FMLA leave. ID

at 25-26.

¶45 On review, the appellant argues that, although he did not provide any

medical documentation in support of his leave request when he submitted his

OPM Form 71 in October 2014, he subsequently provided the requisite

documentation when his physician in the United States submitted a report dated

March 31, 2015, that provided a legitimate basis for his October 2014 leave

request. PFR File, Tab 5 at 30-32; W-2 AF, Tab 46 at 5-6. The appellant

contends that, because his doctor submitted the medical documentation before the

agency’s decision to remove him, the agency should have granted his leave

request retroactively and rescinded the AWOL charge. PFR File, Tab 5 at 22,

30-32 (citing Nash v. U.S. Postal Service, 8 M.S.P.R. 307, 310-11 (1981)

(holding that when an employee has submitted untimely medical evidence

documenting that he was incapacitated for duty, prior to the agency’s decision to

remove him on AWOL charges, the charges for those dates cannot be sustained

because sick leave was improperly denied)).

¶46 An AWOL charge will not be sustained if an appellant presents

administratively acceptable evidence showing that he was incapacitated for duty

during the relevant time period if the employee has suff icient sick leave to cover

the period of absence. See Thom v. Department of the Army, 114 M.S.P.R. 169,

¶ 5 (2010). We have reviewed the March 31, 2015 report submitted by the

appellant’s physician to determine whether it meets this standard. In his report,

the appellant’s physician stated that the appellant had been his patient since

July 2, 2014, and he had seen him for office visits two other times—on

September 2, and November 17, 2014. W-2 AF, Tab 46 at 5. The physician

further stated that, although he and the appellant “had no formal conversation to

determine when [the appellant] was appropriate to return to duty, it seemed

apparent that 9/2/14 would not have been the appropriate time.” Id.

¶47 This report does not show that the appellant was incapacitated from

performing his duties during the period at issue. See Thom, 114 M.S.P.R. 169,

¶ 6. Accordingly, we find that the appellant has not provided administratively

acceptable evidence to justify his absence from October 6 to November 17, 2014.

We therefore conclude that the medical documentation submitted by the appellant

provides no basis for finding that the AWOL charge cannot be sustained.

¶48 In sum, we agree with the administrative judge that the agenc y proved by

preponderant evidence that the appellant was absent from work on the dates in

question, that his absence was not authorized, and that his leave requests were

properly denied. ID at 23-26. Therefore, we find that the administrative judge

properly found that the agency proved the AWOL charge. ID at 26.

The appellant’s remaining arguments regarding his leave status provide no

basis to disturb the initial decision.

¶49 On review, the appellant makes several other allegations of agency error

involving his leave status. PFR File, Tab 5 at 20-33. We have considered these

allegations as claims of harmful procedural error. The Board will not sustain an

agency’s decision if an appellant proves the affirmative defense of harmful error

in the agency’s application of its procedures in arriving at such decision. Doe v.

Department of Justice, 123 M.S.P.R. 90, ¶ 7 (2015). Harmful error cannot be

presumed; an agency’s error is harmful only where the record shows that a

procedural error was 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.

Id.

¶50 The appellant argues on review that the agency placed him on

administrative leave without any justification, and that the conditions of his

administrative leave were a “sham,” particularly the requirement that he be

available to return to duty with 2 hours’ notice, as the agency had no intention of

returning him to work. PFR File, Tab 5 at 22-25. The appellant further argues

that, by placing him on administrative leave for several months, the agency failed

to comply with OPM guidelines (which provide that administrative leave

generally should not be used for an extended or indefinite period ) and AI 67

(which states that administrative leave should be granted sparingly and that

absences for other than brief periods have been ruled inappropriate ). Id. at 23-24;

I-1 IAF, Tab 10 at 67.

¶51 These arguments are unavailing. To the extent that the appellant is

challenging the agency’s decision to place him on administrative leave, it is well

settled that paid administrative leave is not an adverse action appealable to the

Board. LaMell v. Armed Forces Retirement Home, 104 M.S.P.R. 413, ¶¶ 7, 9

(2007).

¶52 As for the appellant’s argument that the agency violated OPM guidelines

and its own leave policy by placing him on administrative leave for an extended

period of time, neither of the provisions cited by the appellant preclude the use of

administrative leave, nor has the appellant shown that the agency’s actions caused

him any harm. 9 Therefore, we find that the appellant failed to prove any harmful

error in conjunction with his placement on administrative leave .

¶53 The appellant also argues on review that the agency improperly placed him

on AWOL for the week of October 6, 2019, and should have placed him on

annual leave instead. PFR File, Tab 5 at 20-21. In support of this argument, the

appellant contends that his earnings and leave statement for the pay period ending

November 1, 2014, indicates that he had an annual leave balance of 43.99 hours

Further, the provision of AI 67 cited by the appellant seems to pertain to situations in

which the appellant has requested administrative leave and thus is not relevant here.

I-1 IAF, Tab 10 at 67.

as of that date and, therefore, he could have used annual leave during the week of

October 6, 2014. Id. at 20-21; W-2 AF, Tab 26 at 16.

¶54 The record contains conflicting evidence as to whether the appellant had

any annual leave. Although the earnings and leave statement cited by the

appellant indicates that he had an annual leave balance of 43.99 hours as of

November 1, 2014, other record evidence indicates that the appellant had 35

hours of annual leave at the beginning of the pay period ending on October 4,

2014, and thus exhausted his annual leave on September 26, 2014. W-2 AF,

Tab 18 at 36.

¶55 We need not resolve this matter, however. Even if the appellant did not

exhaust his leave on September 26, 2014, but, instead, had an annual leave

balance of 43.99 hours as of that date, his leave presumably would have been

applied to the week ending October 4, 2014, rather than the following week, as

the agency had approved his absence through October 4, 2014. W-2 AF, Tab 18

at 27. Consequently, he would not have had enough annual leave to cover his

absence for the week of October 6, 2014.

¶56 Further, even if the agency should have placed the appellant on annual leave

for the week of October 6, 2014, any error in that regard provides no basis for

disturbing the initial decision. Had the appellant been in an annual leave status

for the week of October 6, 2014, he still would have been AWOL for more than

1 month, i.e., from October 13 to November 17, 2014, and the Board has upheld

the penalty of removal for fewer days of AWOL. Foreman v. U.S. Postal Service,

89 M.S.P.R. 328, ¶ 17 (2001) (holding that removal is reasonable for 16 days of

AWOL).

¶57 We find similarly unavailing the appellant’s argument on review that the

agency improperly denied his requests for sick leave fro m October 6-9, 2014.

PFR File, Tab 5 at 21-22; W-2 AF, Tab 32 at 25; Tab 33 at 8, 12-13. The

appellant contends that the agency should have granted these requests because he

explained the reasons for them and AI 67 authorizes employees to self-report and

certify short-term illnesses. PFR File, Tab 5 at 21-22; I-1 IAF, Tab 10 at 64.

¶58 As previously discussed, AI 67 provides that a leave-approving official is

entitled to receive administratively acceptable medical documentation from an

employee in support of sick leave requests. I-1 IAF, Tab 10 at 63. Although this

instruction states that the employee “normally” will not be requested to provide

certification for absences of 3 days or less, and that the employee’s

self-certification as to the reason for his or her absence may be considered

administratively acceptable evidence, regardless of the duration of the absence, it

also states that the leave-approving official may request administratively

acceptable medical documentation if there are circumstances that cause the

supervisor to believe the request for sick leave may be improper . Id. at 63-64.

We find that such circumstances were present during the week of October 6,

2014, given the appellant’s statement to his supervisor in his October 1, 2014

email that he wanted to use sick leave for the remaining 6 weeks of his time

abroad because he had used almost all of his annual leave. W-2 AF, Tab 18 at 28.

Therefore, we find that the appellant’s supervisor did not err by requiring the

appellant to provide certification to justify his sick leave and by denying those

requests pending receipt of administratively acceptable medical evidence .

¶59 The appellant also argues on review that, pursuant to “standard personnel

practice” and agency policy, as set forth in AI 67, the agency should have placed

him on LWOP rather than AWOL pending the resolution of his leave issues. PFR

File, Tab 5 at 21. We have reviewed the AI 67 provisions pertaining to LWOP

and they do not support the appellant’s claim. I-1 IAF, Tab 10 at 65-67. Under

AI 67, absent an emergency, an employee must request LWOP on an OPM Form

71, LWOP is normally granted at the agency’s discretion, and an employee has no

entitlements to LWOP, except under certain circumstances, none of which apply

here. Id. at 65-66. The record does not indicate that the appellant requested

LWOP and, in any event, given that the authorization of LWOP is within the

agency’s discretion, we discern no error in the agency’s decision not to place the

appellant on LWOP during the period at issue in this appeal .

The administrative judge correctly found that the appellant failed to prove

his whistleblower reprisal affirmative defense.

¶60 Under the Whistleblower Protection Enhancement Act of 2012 (W PEA), to

prevail on a prohibited personnel practice affirmative defense in a chapter 75

appeal that independently could form the basis of an IRA appeal, once the agency

proves its adverse action by a preponderance of the evidence, the appellant must

demonstrate by preponderant evidence that he made a protected disclosure or

engaged in protected activity and that the disclosure or activity was a co ntributing

factor in the adverse action. Alarid v. Department of the Army, 122 M.S.P.R.

600, ¶¶ 12-13 (2015); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537,

¶ 19 (2013). If an appellant meets that burden, the burden of persuasion shifts to

the agency to prove by clear and convincing evidence that it would have taken the

same action in the absence of the appellant’s protected disclosure or activity.

5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14.

¶61 In addressing the appellant’s whistleblower reprisal claim in the context of

his removal appeal, the administrative judge reasserted his finding that the

appellant’s assertions about PFPA’s lack of acquisition authority did not

constitute a protected disclosure. ID at 31. He therefore found that the appellant

failed to prove this affirmative defense. Id. In the alternative, the administrative

judge found that, even if the appellant had established that his disclosures were

protected, the agency proved by clear and convincing evidence that it would have

removed him absent his protected disclosures. ID at 31-32.

¶62 For the reasons discussed above, we agree with the administrative judge

that the appellant failed to prove that he made a protected disclosure. Therefore,

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

appellant failed to prove his affirmative defense of whistleblower reprisal . 10

Because we have found that the appellant failed to prove that he made a protected

disclosure, it is unnecessary to decide whether the agency proved by clear and

convincing evidence that it would have removed the appellant in the absence of

his disclosure. See Clarke, 121 M.S.P.R. 154, ¶ 19 n.10. Accordingly, we vacate

the administrative judge’s findings concerning whether the agency proved by

clear and convincing evidence that the agency would have removed the appellant

in the absence of his disclosures.

The doctrine of equitable estoppel is inapplicable.

¶63 The appellant also argues on review that the agency is equitably estopped

from removing him because it did not propose his removal until 4 months after he

resumed administrative leave in November 2014, and no one suggested that he

was still required to submit medical documentation in support of his October

2014 leave request or that his failure to submit this documentation several months

after he returned to administrative leave would jeopardize his employment status.

PFR File, Tab 5 at 25-27. He asserts that he reasonably relied on “the state of

affairs” and believed that the October 2014 leave dispute was superseded by his

return to administrative leave. Id. at 26.

¶64 An appellant must show affirmative misconduct by government agents

leading to unfairness in order to establish equitable estoppel against the

government. See Hanson v. Office of Personnel Management, 833 F.2d 1568,

1569 (Fed. Cir. 1987). The appellant has presented no evidence that the agency

intentionally misled him into believing that he was no longer subject to discipline

Although the administrative judge did not address the appellant’s whistleblower

reprisal affirmative defense until after he determined that removal was a reasonable

penalty, we find that any error in that regard does not provide a basis for disturbing the

initial decision, as the result would be the same in either case. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory

error that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

for being AWOL, nor did the agency ever affirmatively state that it no longer

intended to propose the appellant’s removal. In fact, the agency informed him in

a letter that he could be disciplined for failure to submit documentation

supporting a request for sick leave. W-2 AF, Tab 18 at 27-28. Moreover, an

agency’s failure to take disciplinary action in the past does not give an appellant a

reasonable basis to assume that the agency will not take action, nor does it impose

an obligation on the agency to give advanced notice of any proposed action.

Egleberry v. Department of the Air Force, 27 M.S.P.R. 217, 218-19 (1985).

Therefore, we find that the doctrine of equitable estoppel does not apply here.

The administrative judge properly found that the agency proved nexus

between the charged misconduct and the efficiency of the service, and that the

removal penalty was reasonable.

¶65 The Board has held that sustained charges of AWOL and failure to follow

instructions are inherently connected to the efficiency of the service. See

Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 24 (2014); Adams v.

Department of Labor, 112 M.S.P.R. 288, ¶ 8 (2009). Thus, the administrative

judge properly found that the agency established nexus between the sustained

charges and the efficiency of the service. ID at 28.

¶66 When all of the charges are sustained, the Board will modify an agency’s

chosen penalty only if the agency failed to weigh the relevant factors or if the

agency’s decision clearly exceeded the limits of reasonableness. Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). The Board places

primary importance upon the nature and seriousness of the offense and its relation

to the appellant’s duties, position, and responsibilities. Rackers v. Department of

Justice, 79 M.S.P.R. 262, 282 (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999)

(Table). The Board has recognized that being AWOL is a serious offense that

warrants a severe penalty. Young v. U.S. Postal Service, 79 M.S.P.R. 25, 39

(1998).

¶67 The decision letter and the deciding official’s written Douglas factors

analysis demonstrate that he considered the relevant Douglas factors in making

his penalty determination, including the seriousness of the offense and the

appellant’s job level. I-1 IAF, Tab 9 at 23-27, 36-38. The deciding official found

that the appellant’s misconduct was serious and that, as a senior-level employee,

the appellant was held to a higher standard. Id. at 23-24, 36. The deciding

official also found the appellant’s rehabilitation potential an aggravating factor,

as the appellant had failed to acknowledge wrongdoing or accept responsibility

for his actions. Id. at 26, 37. The deciding official considered the appellant’s

lengthy service, the absence of prior discipline, and his past acceptable

performance as mitigating factors, but found that they were insufficient to

outweigh the seriousness of his misconduct. Id. at 24, 37.

¶68 In assessing the reasonableness of the penalty, the administrative jud ge

found that the deciding official properly weighed the relevant factors in

determining that removal was an appropriate penalty, and that his decision to

remove the appellant was reasonable. ID at 30. Recognizing that the Board must

accord proper deference to the agency’s primary discretion in managing its

workforce, we see no reason to disturb this finding. See Douglas, 5 M.S.P.R.

at 306. Thus, we find that the administrative judge properly sustained the

appellant’s removal.

NOTICE OF APPEAL RIGHTS 11

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

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

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

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).

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

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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

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:

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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

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If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

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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 you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues, 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. 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