Opinion

Jason Poe v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Aug 1, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.8%

referring to the agency’s burden as a showing of “independent causation”

How later courts described this case

referring to the agency’s burden as a showing of “independent causation”
finding that a proper Carr analysis must consider whether general criticism of managers and employees could motivate retaliation
noting that the whistleblower protection statutes are not meant to prot ect employees from their own misconduct

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JASON B. POE, DOCKET NUMBER

Appellant, SF-1221-13-0515-W-1

DEPARTMENT OF THE NAVY, DATE: August 1, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jason B. Poe, Vista, California, pro se.

Thomas Cook, San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied his request for corrective action in this indivi dual right of action (IRA)

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

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

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonp recedential 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 identi fied by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

the initial decision is based on an erroneous interpretation of stat ute 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 discr etion,

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 g ranting the petition for review.

Therefore, we DENY the petition for review. We MODIFY the initial decision to

supplement the administrative judge’s analysis concluding that the agency proved

by clear and convincing evidence that it would have suspended the appellant

absent his whistleblowing activity. Except as expressly modified by this Final

Order, we AFFIRM the initial decision.

BACKGROUND

¶2 In this IRA appeal, the appellant, an Engineer primarily employed in the

agency’s Small Business Innovation Research (SBIR) program of its Space and

Naval Warfare Systems Command (SPAWAR), contended that the agency

suspended him for 5 days in retaliation for his alleged protected disclosures

involving agency contracts with SBIR contractors Metron and Western DataCom,

and for filing complaints with the Equal Employment Opportunity Commission

and the Office of Special Counsel (OSC). Initial Appeal File (IAF), Tabs 1, 16,

92. Concerning Metron, the appellant alleged that he disclosed that the contractor

was double billing the Government because it was using the same computer code

on multiple contracts. IAF, Tab 16 at 12-13. Concerning Western DataCom, the

appellant made two disclosures—one involving the loss of funds on the contract

and one regarding the potential loss of classified information—and both were

related to the consequences of the company’s bankruptcy. Id. at 13-14. The

administrative judge found that the appellant established jurisdiction over his

appeal and, after holding a hearing, she denied his request for corrective action.

IAF, Tab 113, Initial Decision (ID). She found that, even though he established

that one of his disclosures was protected and was a contributing factor in the

agency’s decision to suspend him, the agency proved by clear and con vincing

evidence that it would have suspended him in the absence of that disclosure. ID

at 19.

¶3 In his petition for review and supplements thereto, the appellant essentially

reargues his case and attaches several documents. Petition for Review (PFR)

File, Tabs 1-10. He also argues that the administrative judge was biased in favor

of the agency. PFR File, Tab 1 at 9-12. In the narrative portion of his

supplement, the appellant provides a timeline of his case and challenges the

administrative judge’s findings that he went outside of his chain of command and

that he worked on SBIR matters in contravention of his supervisors’ instructions .

PFR File, Tab 3 at 4-17. The agency responds in opposition to the appellant’s

petition for review, and the appellant provides a reply to the agency’s response.

PFR File, Tabs 11-12.

DISCUSSION OF ARGUMENTS ON REVIEW 2

¶4 The administrative judge correctly determined that the protected disclosure

and the personnel action in this matter occurred before the December 27, 2012

enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA) ,

Pub. L. No. 112-199, 126 Stat. 1465. ID at 6 n.2. Therefore, we agree with her

determination that the pre-WPEA standards concerning the scope of an IRA

appeal apply in this matter. Id.; see Scoggins v Department of the Army,

We have reviewed the relevant legislation enacted since the filing of this appeal and

find that it does not impact the outcome.

123 M.S.P.R. 592, ¶ 7 (2016). We also agree with the administrative judge’s

decision to apply the WPEA’s expanded definition of a protected disclosure,

considering the Board’s decision in Day v. Department of Homeland Security,

119 M.S.P.R. 589, ¶10-12 (2013), which found that this expansion constituted a

clarification of—rather than a change in—existing law. ID at 6 n.2.

¶5 Under pre-WPEA law, in reviewing the merits of an IRA appeal, the Board

will examine whether the appellant proved by preponderant evidence that he

engaged in whistleblowing activity by making a protected disclosure under

5 U.S.C. § 2302(b)(8) and that such whistleblowing activity was a contributing

factor in an agency personnel action. Mithen v. Department of Veterans Affairs,

119 M.S.P.R. 215, ¶ 11 (2013). If so, the Board must order corrective action

unless the agency establishes by clear and convincing evidence that it would have

taken the same personnel action absent the disclosure . Id.

¶6 A protected disclosure for purposes of whistleblowing is one that the

appellant reasonably believed evidenced gross mismanagement, a gross waste of

funds, an abuse of authority, a substantial and specific danger to public health or

safety, or any violation of a law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A).

Gross mismanagement means a management action or inaction that creates a

substantial risk of significant adverse impact upon the agency’s ability to

accomplish its mission. White v. Department of the Air Force, 63 M.S.P.R. 90,

95 (1994). Gross waste of funds constitutes a more than debatable expenditure

that is significantly out of proportion to the benefit reason ably expected to accrue

to the Government. Van Ee v. Environmental Protection Agency , 64 M.S.P.R.

693, 698 (1994).

¶7 To establish that the appellant had a reasonable belief that a disclosure met

the criteria of 5 U.S.C. § 2302(b)(8), he need not prove that the condition

disclosed actually established a regulatory violation or any of the other situations

detailed under 5 U.S.C. § 2302(b)(8)(A)(ii); rather, the appellant must show that

the matter disclosed was one that a reasonable person in his position would

believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). Garst

v. Department of the Army, 60 M.S.P.R. 514, 518 (1994). The test for

determining whether an employee’s belief regarding the disclosed matter is

reasonable is whether a disinterested observer with knowledge of the essential

facts known to and readily ascertainable by the employee could reasonably

conclude that the actions of the agency evidence the wrongdoing disclosed .

Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

The appellant failed to establish that his disclosure of alleged double billing by

Metron was protected.

¶8 Regarding the appellant’s first purported disclosure, that agency contractor

Metron was double billing the Government by reusing source code it had written

for one contract in subsequent contracts, the administrative judge found that the

appellant failed to establish that a reasonable person in his position would have

believed that Metron was double billing. ID at 10. In support, she cited the

appellant’s lack of evidence that Metron actually was reusing the same source

code in multiple contracts, the detailed and straightforward testimony of agency

officials that they had found no evidence of double billing, and the advice of

agency legal counsel that Metron’s ownership of the source code allowed it to

reuse the code as a matter of right. ID at 9-11.

¶9 Irrespective of whether the appellant was alleging that this represented

gross mismanagement or a gross waste of funds, the administrative judge found

that the appellant failed to prove by preponderant evidence that a reasonable

person in his position would believe that Metron actually was double billing the

agency. ID at 8-9. We agree. Given the appellant’s failure in this regard, we

agree with the administrative judge that he failed to establish that he made a

protected disclosure. See Horton v. Department of the Navy, 60 M.S.P.R. 397,

403 (1994) (finding that, because the record indicated no credible basis for the

appellant’s assertions of wrongdoing, he failed to establish that he made a

protected disclosure), aff’d, 66 F.3d 279 (Fed. Cir. 1995), superseded by statute

on other grounds, as stated in Day, 119 M.S.P.R. 589, ¶¶ 14, 18.

The appellant established that his disclosure of a gross waste of funds involving

the Western DataCom contract was a contributing factor in the agency’s decision

to suspend him.

¶10 The appellant asserted two alleged protected disclosures involving the

Western DataCom contract: (1) that Western DataCom committed fraud because

the agency had paid over $1 million on the contract but never received t he

software product it contracted for; and (2) that Western DataCom possessed

confidential agency information that could be lost as a consequence of its

bankruptcy. ID at 11; IAF, Tabs 1, 16, 92. The administrative judge found that

the appellant failed to establish the latter of those alleged disclosures, i.e., that

Western DataCom’s failure and bankruptcy represented gross mismanagement in

the context of the agency’s $7 billion small business contracting budget. ID

at 12-13. She also found that the appellant failed to establish that the latter

represented gross mismanagement because he failed to show that the agency’s

actions created a substantial risk of a significant adverse impact on its ability to

accomplish its mission. ID at 13. We agree with the administrative judge’s

analysis.

¶11 By contrast, however, the administrative judge found that the appellant did

establish that a reasonable person in his position would believe that the agency’s

expenditure of over $1 million in funds on the Western DataC om contract,

without receiving any benefit in return, constituted a gross waste of funds,

finding ample evidence to show that there was more than a debatable expenditure

at issue. ID at 13-14. The administrative judge further found that, by virtue of

the knowledge/timing test, this disclosure was a contributing factor in the

agency’s decision to suspend the appellant given that there was no dispute that

both the proposing and deciding officials were aware of his disclosure and that

his suspension occurred less than 5 months after he made it. ID at 14-15. We

agree.

The agency established by clear and convincing evidence that it would have

suspended the appellant in the absence of his whistleblowing activity.

¶12 In determining whether an agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of the

whistleblowing activity, the Board will consider the following factors: the

strength of the agency’s evidence in support of its action; the existence and

strength of any motive to retaliate on the part of the agency officials who were

involved in the decision; and any evidence that the agency takes similar actions

against employees who are not whistleblowers but who are otherwise similarly

situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.

1999). The Board does not view the Carr factors as discrete elements, each of

which the agency must prove by clear and convincing evidence, but rather weighs

the factors together to determine whether the evidence is c lear and convincing as

a whole. Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 11 (2010).

Crucial to this analysis, the Board must consider all of the evidence, including

that which fairly detracts from the conclusion that the agency met its burden.

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

¶13 Regarding the strength of the agency’s evidence in support of its action, we

agree with the administrative judge’s analysis that the appellant gave the agency

ample reason to issue the suspension in question absent his whistleblowing

activity based on the charges of: (1) insubordination; (2) use of disrespectful

language towards other personnel; and (3) failure t o follow his chain of

command. ID at 17-18; see Miller v. Department of Justice, 842 F.3d 1252,

1257-58 (Fed. Cir. 2016) (referring to the agency’s burden as a showing of

“independent causation”). For example, regarding charge 2, the appellant’s email

provides strong evidence in support of the agency’s decision to discipline him

independent of any testimony. See Miller, 842 F.3d at 1261. Moreover, to the

extent the appellant argues that he was disciplined for the act of making his

disclosure when he sent the email, both the U.S. Court of Appeals for the Federal

Circuit and the Board consistently have held that engaging in protected activity

does not shield an employee from discipline for wrongful or disruptive conduct

like that established in this matter. Carr, 185 F.3d at 1326; Russell v.

Department of Justice, 76 M.S.P.R. 317, 325 (1997).

¶14 Moreover, as to charge 1, the agency gave the appellant clear, written

instructions to refrain from working on SBIR matters and the record reflects that

he nevertheless continued to do so. ID at 16; IAF, Tab 5 at 201-04, 249, 255-59,

266, 294. The appellant’s repeated defiance of this order provides strong

evidence of his insubordination, i.e., the willful and intentional refusal to obey an

authorized order that his supervisor was entitled to have obeyed. See, e.g.,

Phillips v. General Services Administration, 878 F.2d 370, 373 (Fed. Cir. 1989).

As to charge 3, the record reflects that the appellant sent an email to someone in

his organization that he admits on review he previously did not know, PFR File,

Tab 4 at 4, accusing that individual, as well as others, of serious misconduct, IAF,

Tab 5 at 243-45. The appellant not only copied the SPAWAR Commander on the

email, he also sought to follow up with the Commander in person, ID at 16; IAF,

Tab 5 at 247, twice going outside the chain of command in an organization in

which one would expect employees to respect such concerns regardless of the

nature of the communication, ID at 16; see Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 55 (2011) (finding that going outside the chain of

command may constitute a basis for disciplinary action). Therefore, the

appellant’s 5-day suspension appears to be a reasonable response by the agency to

invoke progressive discipline in the context of the appellant’s intentional and

repeated refusal to follow his supervisor’s August 11, 2011 instructions to cease

nearly all of his work on SBIR matters and to use his chain of command properly.

IAF, Tab 5 at 95-98, 132-35, 299.

¶15 In addition, as the administrative judge recounted in the initial decision, the

proposing official testified that the suspension was intended to “try to get a good

employee back” and the deciding official testified that he wanted to get the

appellant to correct his inappropriate behavior. ID at 17. Based on her

observation of this testimony, which she found was “specific, detailed, consistent

with [the] record, and not inherently improbable,” she found th at the strength of

the evidence weighed strongly in the agency’s favor. ID at 17 -18; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that 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). The appellant offers no

sufficiently sound reasons on review to upset the administrative judge’s

determination. Thus, we agree with the administrative judge that the record

contains strong evidence in support of the agency’s action.

¶16 Concerning the motive to retaliate on the part of the agency officials

involved in the decision to suspend the appellant , the administrative judge found

that they had little motive to retaliate against the appellant for his protected

disclosure. ID at 18. In making this determination, she considered hearing

testimony that problems with the Western DataCom contract were well known

long before the appellant’s whistleblowing activity and that it represented only a

small fraction of the SBIR contracting budget. ID at 18-19; IAF, Tab 5 at 213.

In addition, regardless of the general opprobrium associated with the failure of

any particular contract, she found that, under such circumstances, the failure of

the Western DataCom contract would not appear to be particularly unusual such

that it would provide a significant motive for the individuals involved in the

decision to discipline the appellant as a form of retaliation against him. ID at 18.

We agree with the administrative judge’s reasoning.

¶17 Additionally, given the appellant’s assertion that 75% of such SBIR

contracts fail, we find that it is no more likely for other agency officials, i.e.,

those responsible for the agency’s performance overall, but neither directly

involved in the decision to discipline the appellant nor directly implicated in his

disclosure, to retaliate against him on account of his disclosure regarding the

Western DataCom contract. See Miller, 842 F.3d at 1261-62 (finding that a

proper Carr analysis must consider whether general criticism of managers and

employees could motivate retaliation). Moreover, the administrative judge found

the proposing official credible when he testified that the proposal to suspend the

appellant was not motivated by his whistleblowing activities. ID at 19; see

Haebe, 288 F.3d at 1301. Further, we find that the appropriateness of the penalty

to the misconduct established, as noted above, belies any implication that the

agency officials here had a strong motive to retaliate. Accordingly, we agree with

the administrative judge’s conclusion that the agency officials demonstrated little

motive to retaliate.

¶18 On the third Carr factor, the administrative judge found that the appellant

had not identified any similarly situated nonwhistleblowers who were treated

more favorably than he was and that this factor therefore weighed in the agency’s

favor. ID at 19. This misstates the appropriate burden, as we are engaged here in

examining the agency’s case in support of its action. See Carr, 185 F.3d at 1323.

Consistent with that endeavor, our reviewing court has observed that the agency,

not the appellant, “bears the risk associated with having no evidence on record for

this factor.” Miller, 842 F.3d at 1262. Further, because it is the agency’s burden

of proof, when the agency fails to introduce relevant comparator evidence, the

third Carr factor cannot weigh in its favor. Smith v. General Services

Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental

Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Thus, we find that,

contrary to the administrative judge’s finding, this factor does not weigh in the

agency’s favor. ID at 19. Nevertheless, even if the absence of such evidence

could be found to “cut slightly against the Government,” Miller, 842 F.3d

at 1262, we are left with the firm belief that the agency would have taken the

same action in the absence of the appellant’s protected disclosure based on the

strength of the evidence in support of its action and the lack of a strong motive on

the part of agency officials to retaliate against the appellant for the protected

disclosure identified in this IRA appeal. See Carr, 185 F.3d at 1326 (noting that

the whistleblower protection statutes are not meant to prot ect employees from

their own misconduct).

The appellant fails to establish that the administrative judge was biased or that

she abused her discretion in conducting the proceedings.

¶19 The appellant also contends that the administrative judge was unfairly

biased in the agency’s favor. PFR File, Tab 1 at 9-12. He argues that the

administrative judge denied him continuances to obtain counsel and to allow for a

witness to testify, deleted evidence from the record, and abused the

attorney‑client privilege to censor individual testimony and prevent disclosure of

damaging information. Id. at 9-10. He also challenges the administrative judge’s

rulings on discovery and witnesses, contending that the administrative judge

engaged in ex parte conversations with agency counsel, and complains that she

denied his motion to move the hearing. Id. at 10-11.

¶20 Although the appellant sets forth several claims here, his contentions all

involve the manner in which the administrative judge conducted this proceeding.

An administrative judge’s conduct during the course of a Board proceeding

warrants a new adjudication only if the administrative judge’s comments or

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

judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,

1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555

(1994)). As the following discussion indicates, the appellant’s conclusory

allegations, for which he offers little support, do not meet this standard.

Moreover, in making a claim of bias, an appellant must overcome the

presumption of honesty and integrity on the part of the administrative judge.

E.g., Protopapa v. Department of Transportation, 14 M.S.P.R. 455, 459 (1983).

The fact that the administrative judge does not accept the appellant’s assertions or

interpret testimony in the fashion the appellant claims is correct does not

constitute bias. Id. Here, the appellant’s contention of bias is not based on any

evidence of record but rather only demonstrates his mere disagreement with the

administrative judge. Thus, we find the appellant’s claim of bias to be without

merit.

¶21 Regarding the continuance the appellant sought so as to obtain counsel, the

record reflects that his counsel withdrew on December 27, 2013, because the

appellant had engaged him only for the mediation process, which had concluded.

IAF, Tab 53. The administrative judge’s order denying the appellant’s July 10

and 11, 2016 motions to reschedule the hearing indicates that the appellant, who

had proceeded pro se in the interim, IAF, Tab 71, raised the issue of needing new

counsel, as well as a purported conflict, for the first time in that motion, which he

filed following the prehearing conference and after agreeing to hearing dates ,

IAF, Tabs 66, 95, 99-100. Thus, the record reflects that the appellant had ample

opportunity to obtain counsel and that he waited until the eve of the hearing to

request a continuance. The record also reflects that the appellant received the

witness subpoenas he sought on the day he requested them, over 10 days before

the scheduled hearing, IAF, Tabs 93-94, and that, despite the appellant’s failure

to file prehearing submissions in accordance with the administrative judge’s

orders, the administrative judge nevertheless granted the witnesses for which the

appellant provided the required information, IAF, Tab 89 at 18-23, Tab 92 at 5.

¶22 Importantly, the appellant fails to identify the specific witnesses on review

that the administrative judge purportedly denied him or what their testimony

would have entailed. Moreover, an administrative judge has wide discretion to

control the proceedings, including the authority to exclude testimony she believes

would be irrelevant, immaterial, or unduly repetitious. Parker v. Department of

Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). The appellant has not shown

the administrative judge abused her discretion in denying his request for certain

witnesses or in otherwise controlling the hearing-related proceedings.

¶23 An administrative judge also has broad discretion in ruling on discovery

matters, and absent an abuse of discretion, the Board will not find reversible error

in such rulings. E.g., Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16

(2016). The appellant alleges that the administrative judge denied his motions to

compel discovery, but he does not identify which of his several motions to

compel that he is challenging here, nor does he attempt to argue why the

administrative judge’s denial was wrong. PFR File, Tab 1 at 11. The record

reflects that the administrative judge denied the appellant’s August 4, 2013

motion to compel because it failed to comply with the Board’s discovery

procedures but that she granted his motion to compel depositions . IAF,

Tabs 25-26, 37. After a short suspension to allow the parties to engage in an

ultimately unsuccessful attempt to mediate their dispute, IAF, Tabs 49, 51, the

appellant filed several more motions to compel, IAF, Tabs 70, 77 -79, 81, which

the administrative judge also denied, finding that the appellant’s requests were

overly broad and that he sought materials that were either immaterial, irrelevant,

or were not calculated to lead to the discovery of admissible evidence, IAF,

Tab 87. Nevertheless, regardless of which motion to compel the appellant is

challenging, he has not shown that the administrative judge abused her

considerable discretion in this regard.

¶24 The appellant submitted several documents with his petition for review,

many of which were submitted below and none of which he asserts are new

evidence that was unavailable despite his due diligence befo re the record closed.

PFR File, Tabs 1-10. We have not considered them. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980) (holding that the Board will not consider

evidence submitted for the first time with the petition for review absent a showing

that it was unavailable before the record was closed despite the party’s due

diligence). Lastly, he asserts that the agency is interfering with a request for

leave under the Family and Medical Leave Act of 1993 that he submitted to his

current employer at Camp Pendleton. PFR File, Tab 2 at 17. This claim is

beyond the scope of this action, as it involves the appellant’s current employer,

not the respondent agency. Moreover, there is no evidence to indicate that the

appellant has exhausted his administrative remedies before OSC on this claim,

such that it might be considered in the context of this IRA appeal. Yunus v.

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

NOTICE OF APPEAL RIGHTS 3

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

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

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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.

about whether a particular forum is the appropriate o ne 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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(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

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§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

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Alternatively, you may request review by the Equal Employment

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

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If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 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:

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.