Kathy Morphis v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHY MORPHIS, DOCKET NUMBER

Appellant, SF-0752-20-0516-I-1

v.

DEPARTMENT OF THE ARMY, DATE: August 9, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence, Esquire, and Shaun Southworth, Esquire, Atlanta,

Georgia, for the appellant.

Heather A. Masten, Esquire, Fort Sam Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained her 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

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

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

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or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

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

concerning the appellant’s affirmative defenses of reprisal for equal employment

opportunity (EEO) activity and whistleblowing, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was employed by the agency as an Attorney-Advisor in the

agency’s Judge Advocate Office at Tripler Army Medical Center in Honolulu,

Hawaii. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 18. By letter dated

March 27, 2020, the agency proposed her removal based on two charges:

(1) conduct unbecoming a Federal employee; and (2) negligent performance of

duties. IAF, Tab 1 at 8-20. Each charge was supported by five specifications.

Id. at 8-9. After affording the appellant an opportunity to respond, the agency

issued a decision sustaining both charges and removing the appellant, effective

May 27, 2020. Id. at 44-46. The deciding official sustained specifications 2-5 of

the conduct unbecoming charge and all five specifications in support of the

negligent performance charge. Id.

¶3 The appellant filed a Board appeal challenging her removal and raising

affirmative defenses of reprisal for her protected EEO and whistleblowing

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activities. 2 Id. at 7, 38-39. After holding the appellant’s requested hearing, the

administrative judge issued an initial decision sustaining the appellant’s removal.

IAF, Tab 64, Initial Decision (ID). The administrative judge found that the

agency proved both of its charges, the appellant failed to prove any of her

affirmative defenses, and the penalty of removal was reasonable. Regarding the

conduct unbecoming charge, the administrative judge sustained specifications 3-5

but did not sustain specification 2. ID at 5-32. Regarding the negligent

performance charge, the administrative judge sustained all five specifications. ID

at 32-49. The administrative judge found that the appellant failed to prove that

her prior EEO activity was a motivating factor in her removal and that, although

the agency perceived her as a whistleblower, the agency proved by clear and

convincing evidence that it would have removed her in the absence of such a

perception. ID at 52-65. Finally, the administrative judge also found that the

agency did not violate the appellant’s due process rights based on the deciding

official’s testimony at the hearing that he relied on the EEO materials that the

appellant submitted with her written response to support his penalty

determination. ID at 49-52.

¶4 The appellant has filed a petition for review, which the agency has opposed.

Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency proved both of its

charges.

¶5 On petition for review, the appellant argues that the agency failed to prove

any of its specifications in support of its charges. PFR File, Tab 1 at 7 -13.

However, she largely fails to cite to specific evidence and explain its relevance or

how it would alter the outcome of the appeal. For example, regarding charge 1,

2

The appellant also initially raised, but later withdrew, affirmative defenses of

discrimination based on her age, sex, and disability. ID at 53 n.13.

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specification 4, the appellant summarily asserts, “this was a mistake and the

Agency failed to prove it occurred as charged. It was not serious and did not

ultimately impact the Agency seriously.” Id. at 8. To the extent the appellant

does not identify specific errors in the administrative judge’s analysis, the Board

will not embark upon a complete review of the record. See Baney v. Department

of Justice, 109 M.S.P.R. 242, ¶ 7 (2008); Tines v. Department of the Air Force,

56 M.S.P.R. 90, 92 (1992); 5 C.F.R. § 1201.115(a)(2) (stating that a petitioner

who alleges that the administrative judge made erroneous findings of material

fact must explain why the challenged factual determination is incorrect and

identify specific evidence in the record that demonstrates the error). Nonetheless,

we address those issues and findings regarding which the appellant has presented

specific arguments on review.

¶6 Regarding charge 2, the appellant reiterates her unsupported argument that,

to prove a charge of negligent performance of duties, the agency was required to

prove the elements of the tort of legal malpractice, which includes proof that the

appellant’s actions resulted in damage to the agency. PFR File, Tab 1 at 11. The

administrative judge, however, properly considered and rejected such an

argument. ID at 32-33; see Velez v. Department of Homeland Security,

101 M.S.P.R. 650, ¶ 11 (2006), aff’d, 219 F. App’x 990 (Fed. Cir. 2007) (holding

that culpable negligence in the performance of official duties is a failure to

exercise the degree of care required under the particular circumstances, which a

person of ordinary prudence in the same situation and with equal experience

would not omit). The appellant also asserts that the agency failed to prove

charge 2, specifications 3 and 4, because it failed to present evidence that her

legal advice was wrong. PFR File, Tab 1 at 12-13. However, the relevant inquiry

is not whether the agency proved that the appellant provided incorrect legal

advice but, rather, whether the agency proved that she failed to exercise the

degree of care required under the particular circumstances. See Velez,

101 M.S.P.R. 650, ¶ 11. The appellant has not established any error in the

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administrative judge’s findings that it was negligent for her to “shoot from the

hip” and provide legal advice based on personal opinions without conducting any

legal research or providing any legal analysis, particularly given the issues

involved complex and opaque legal questions that an attorney of the appellant’s

experience should have known could be open to multiple interpretations and

would need to be researched further. ID at 43-48.

¶7 Regarding charge 2, specification 5, the appellant summarily asserts that

this specification “shows charge stacking by the Agency” because the agency

charged her for the same misconduct twice. PFR File, Tab 1 at 13. The record

reflects that in charge 2, specification 5, the agency charged the appellant with

negligently failing to perform her duties by refusing to assist or provide discovery

as ordered by a military judge in a military courts-martial case. IAF, Tab 1 at 9.

Although related, charge 1, specification 3, charged her with conduct unbecoming

based on an inflammatory statement she made to the trial counsel in the context

of refusing to provide the discovery. Id. at 8. Thus, we discern no error in the

administrative judge’s decision to sustain both specifications.

¶8 Next, the appellant contends that the administrative judge erred in her

credibility findings. Regarding charge 2, specification 1, the appellant contends

that she did not testify that she told her supervisor that live testimony was

required at an adverse action privilege hearing and the administrative judge erred

in crediting her supervisor’s testimony to the contrary because the supervisor was

biased against her. PFR File, Tab 1 at 11-12. Such arguments do not provide a

sufficiently sound reason for overturning the administrative judge’s

demeanor-based credibility findings. See Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board may overturn an

administrative judge’s credibility determinations only when it has “sufficiently

sound” reasons for doing so). Here, the administrative judge observed the

appellant and her supervisor testify, and he found that the appellant’s supervisor’s

testimony was “eminently more credible than the appellant’s” and consistent with

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the record, including with his contemporaneous emails and memorandum for the

record. ID at 39. In contrast, the administrative judge found that the appellant’s

testimony was evasive, vague, argumentative, and neither internally consistent

nor consistent with the record. ID at 39-40. We decline to disturb the

administrative judge’s credibility findings because the record reflects that he

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions on the issue of credibility. See, e.g., Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health and

Human Services, 33 M.S.P.R. 357, 359 (1987).

¶9 Similarly, regarding charge 1, specification 5, the appellant contends that

the administrative judge erred in crediting Major J.W.’s testimony because he was

unreliable, biased, and paranoid that the appellant would blame him for

malpractice. PFR File, Tab 1 at 7-9. The appellant further contends that Major

J.W.’s hearing testimony was inconsistent with his written memorandum of the

incident because he did not specifically use the word “threat” in describing the

appellant’s alleged actions that he perceived as a threat to change his testimony.

Id. at 9. Finally, the appellant asserts that Major J.W. knew that any alleged

threat by her to report him would not have been viable because Major J.W. knew

he did not have any obligation to report child abuse. Id. at 9-10. However, the

administrative judge considered and rejected such arguments, which we find

constitute mere disagreement with the administrative judge’s credibility findings

and, thus, do not provide a sufficiently sound reason to overturn such findings.

ID at 19-24. For example, the administrative judge acknowledged that Major

J.W. conceded that he was aware that he had no professional responsibility to

report child abuse, which could suggest that he should have known that the

alleged threat by the appellant was an empty threat. ID at 22. However, the

administrative judge credited the testimony of Major J.W. that he viewed the

appellant as a legal expert on these issues and therefore believed that she might

have some legitimate basis for making the threat. Id. The administrative judge

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further found Major J.W.’s testimony and description of the fear and anxiety he

experienced as a result of his January 23, 2020 conversation with the appellant to

be “fully sincere, internally consistent, and consistent with the record.” Id.

¶10 Lastly, the appellant contends that the administrative judge erred in

sustaining charge 2, specification 2, because to do so would amount to

disciplining her for being a whistleblower. PFR File, Tab 1 at 12. However, as

discussed below, we disagree with the administrative judge’s conclusion that the

proposing official perceived the appellant as a whistleblower based on her

comments that form the basis of this specification. Thus, the appellant’s

argument provides no basis for reversing the administrative judge’s decision to

sustain charge 2, specification 2.

We vacate the administrative judge’s findings concerning the appellant’s

affirmative defense of whistleblower reprisal.

¶11 The administrative judge found that the appellant’s supervisor, the Center

Judge Advocate (CJA), who was the proposing official, perceived the appellant as

a whistleblower based on their June 3, 2019 conversation that formed the basis of

the agency’s charge 2, specification 2. ID at 60-61. The agency has not filed a

cross petition for review challenging the administrative judge’s finding that the

CJA perceived the appellant as a whistleblower. Nonetheless, we exercise our

discretion to consider the issue to properly address the appellant’s contention on

review that the administrative judge erred in sustaining cha rge 2, specification 2,

because it was grounded in her perceived whistleblowing. PFR File, Tab 1 at 12;

see 5 C.F.R. § 1201.115(e) (stating that the Board reserves the authority to

consider any issue in an appeal before it).

¶12 The relevant background facts according to the administrative judge are as

follows. The parties do not dispute that, during the June 3, 2019 meeting, the

appellant and the CJA discussed a privileging matter concerning a hospital

provider who had been accused of engaging in inappropriate sexual conduct with

patients and staff. ID at 2-3, 34, 36. A credentialing committee had previously

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convened to discuss the matter, and the committee intended to recommend to the

Commander, who was the ultimate decision maker, that the provider be reinstated

with monitoring and evaluation. ID at 33-35. The CJA, whose role was to advise

the Commander in legal matters, disagreed with the credentialing committee’s

recommendation, believed there was sufficient evidence to take an adverse

privileging action, and expressed his concern to the head of the credentialing

committee about the optics of reinstating the provider under the circumstances.

ID at 35. However, prior to making his recommendation to the Commander, t he

CJA wanted to discuss the matter with the appellant, who was the agency’s legal

expert in privileging matters. ID at 35, 41.

¶13 On June 3, 2019, the CJA met with the appellant, and they discussed the

matter. ID at 36. The administrative judge credited the testimony of the CJA,

over the appellant’s denial that, during their meeting, the appellant raised

concerns that the CJA would be acting unethically and asserting unlawful

command influence (UCI) if he recommended to the Commander a course of

action that differed from the credentialing committee’s recommendation. ID

at 36-37. The CJA took the appellant’s alleged ethical concerns seriousl y and

reported them to the legal staff at MEDCOM, the agency’s central medical

command. ID at 37. MEDCOM issued a memorandum dated September 3, 2019,

finding that there was no evidence to support the allegation s that the CJA had

engaged in unethical conduct or UCI. Id.; IAF, Tab 21 at 4-8. Thereafter, the

CJA proposed the appellant’s removal on March 27, 2020. IAF, Tab 1 at 8-20.

Charge 2, specification 2 of the proposal alleged that the appellant negligently

failed to adequately research her legal opinion that it was UCI and unethical for

the CJA to advise the Commander of a recommendation that differed from the

credentialing committee’s recommendation, which is contrary to Army

Regulations stating that the Commander is not bound by the recommendation of

the credentialing committee. Id. at 9; IAF, Tab 23 at 246.

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¶14 The administrative judge found that the CJA perceived the appellant as a

whistleblower based on the following: (1) the CJA admitted that the appellant

accused him of unethical conduct and UCI, both of which would be considered a

violation of law, rule, or regulation; and (2) the CJA took the appellant’s

accusations seriously and self-reported the issues raised. ID at 61. We disagree

with the administrative judge’s analysis. Under a perceived whistleblower

theory, the relevant inquiry is whether the CJA reasonably believed that the

appellant made or intended to make disclosures that evidenced a type of

wrongdoing listed under 5 U.S.C. § 2302(b)(8). See King v. Department of the

Army, 116 M.S.P.R. 689, ¶ 8 (2011). Here, the record does not support such a

finding.

¶15 The CJA testified that he was concerned generally that the appellant had a

perception that he was acting unethically, and he reported the appellant’s

allegations to dispel any question concerning his credibility or reputation not

because he viewed the appellant’s allegations “. . . as credible, or even

understood . . .” the basis for her allegations or how his actions purported to raise

any ethical concerns or UCI. IAF, Tab 61, Hearing Recording (HR) (testimony of

the CJA). He further testified that the appellant did not say why his conduct

would be unethical and, on cross-examination, when asked to explain how the

situation raised any ethical issues, the CJA indicated that it was the appellant’s

perception, and you would have to ask her. Id. He further testified that the

appellant made the comments but whether they were proper or feasible was a

different argument. Id. We find that, given the conclusory and incomplete nature

of the appellant’s allegations, the CJA could not reasonably have perceived her as

disclosing a violation of law, rule, or regulation, notwithstanding his report of her

allegations. See, e.g., Montgomery v. Merit Systems Protection Board, 382 F.

App’x 942, 947 (Fed. Cir. 2010) (finding that the relevant management officials

did not perceive the appellant to be a whistleblower because, although they

conceded knowledge of the allegations, they did not concede the legitimacy of her

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allegations, which they perceived as frivolous) (citing Special Counsel v. Spears,

75 M.S.P.R. 639, 652-54 (1997) (finding that the doctrine of perceived

whistleblowing does not apply if a hypothetical observer could not reasonably

believe that the information disclosed evidenced agency wrongdoing)). 3

¶16 Moreover, at the time he proposed the appellant’s removal on March 27,

2020, MEDCOM had already exonerated the CJA of any misconduct when, on

September 3, 2019, it concluded that he had not engaged in unethical conduct or

exerted UCI. IAF, Tab 21 at 4-8. Significantly, MEDCOM concluded that UCI

was not applicable to the privileging matter because the CJA was not advising the

Commander in a court-martial process. Id. at 6-7. It further concluded that there

were no ethical issues because the Commander was not bound by the

recommendation of the credentialing committee, it was the CJA’s duty to advise

the Commander on health law matters, there was sufficient evidence to support a

recommendation for an adverse privileging action, and MEDCOM had already

informed the CJA that reinstatement with monitoring and evaluation was not an

option because the provider no longer possessed a medical license and therefore

could not practice medicine even if reinstated. Id. at 5-7. Thus, under these

facts, the record does not support a conclusion that the CJA perceived the

appellant as a whistleblower at the time he issued the proposal notice. 4 See

3

The Board may rely on unpublished decisions of the U.S. Court of Appeals for the

Federal Circuit if it finds the court’s reasoning persuasive, as we do here. E.g.,

Johnson v. Office of Personnel Management, 2022 MSPB 19, ¶ 11 n.3.

4

On review, the appellant disputes the administrative judge’s finding that the deciding

official did not perceive her to be a whistleblower. PFR File, Tab 1 at 5. The appellant

contends that the deciding official must have perceived her to be a whistleblower

because, in her written response to the proposal notice, she alleged that her removal

constituted reprisal based on the proposing official’s perception of her as a

whistleblower. Id. The administrative judge acknowledged that the appellant raised

such an argument in her written response to the proposal notice, but he credited the

testimony of the deciding official that he was confused about the appellant’s perceived

whistleblowing claim because he would only consider someone a whistleblower if they

reported wrongdoing to the Office of Special Counsel or there was evidence that the

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Montgomery, 382 F. App’x at 947. Accordingly, we vacate the administrative

judge’s finding to the contrary. Because we find that the appellant failed to prove

that she was perceived as a whistleblower, we also vacate the administrative

judge’s clear and convincing analysis and we do not reach the appellant’s

arguments regarding the same. PFR File, Tab 1 at 6-7; see Clarke v. Department

of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board

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

a finding that the appellant established his prima facie case), aff’d, 623 F. App’x

1016 (Fed. Cir. 2015).

The administrative judge properly found that the appellant failed to prove her

remaining affirmative defenses.

¶17 On review, the appellant reiterates her argument that the agency violated

her due process rights because the deciding official testified that he considered

the evidence the appellant submitted in her written response to the proposal

notice as an aggravating factor. PFR File, Tab 1 at 13. The administrative judge

summarized the issue as follows: the deciding official testified that, in

determining the appropriate penalty, he considered the information provided by

the appellant in her written response, which related to her prior EEO complaints,

and found that such information further supported his conclusion that removal

was the appropriate penalty because the appellant demonstrated a pattern of being

unable or unwilling to see any other perspective than her own and placing the

blame for her actions on others rather than accepting at least some respo nsibility.

ID at 49. The administrative judge found that this did not amount to a due

agency had launched a whistleblower investigation, neither of which had occurred. ID

at 61. Because the perceived whistleblower analysis is based on the perception of the

agency officials and, in light of the administrative judge’s credibility finding that the

deciding official did not believe that the appellant engaged or intended to engage in

whistleblowing activity, we discern no error in the administrative judge’s conclusion

that the deciding official did not perceive the appellant to be a whistleblower. See

King, 116 M.S.P.R. 689, ¶ 8.

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process violation because the notice of proposed removal clearly put the appellant

on notice that it considered as an aggravating factor the appellant’s apparent

inability to recognize or accept that she had made errors. ID at 52. The

administrative judge further noted that the appellant failed to cite any precedent

that would suggest that the deciding official had a duty to notify the appellant that

he may use her written response to support an aggravating factor. Id.

¶18 We agree with the administrative judge’s conclusion that the appellant

failed to establish that the agency violated her due process rights . The Board has

held that an employee is not entitled to know the particular weight that a deciding

official will attach to her arguments raised in response to the proposed adverse

action in advance of a final decision. Grimes v. Department of Justice,

122 M.S.P.R. 36, ¶ 13 (2014); Wilson v. Department of Homeland Security,

120 M.S.P.R. 686, ¶¶ 11-12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015).

Thus, we find unpersuasive the appellant’s contention that the deciding official

could not draw an adverse inference for penalty purposes based on information

contained in her written response. PFR File, Tab 1 at 13.

¶19 The appellant also argues that the deciding official’s consideration of the

EEO materials she submitted amounts to direct evidence that her removal was not

free from retaliation for her EEO activity. Id. at 14. We find her argument

unavailing. The deciding official testified that it was not the fact that the

appellant engaged in EEO activity itself but rather, as the administrative judge

noted, the content of the appellant’s statements that reflected a pattern in which

she failed to take accountability or assume responsib ility for her behavior which

led the deciding official to believe she lacked potential for rehabilitation. ID

at 49, 52; HR (testimony of the deciding official). We find no basis to disturb the

administrative judge’s explained findings that none of the appellant’s EEO

activity was a motivating factor in her removal. ID at 59. The administrative

judge’s findings demonstrate that he considered the evidence as a whole, drew

13

appropriate inferences, and made reasoned conclusions on the issue of credibility.

See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359.

¶20 We note that, after the issuance of the initial decision, the Board issued

Pridgen v. Office of Management and Budget, 2022 MSPB 31. Among other

things, Pridgen held that, although claims of retaliation for opposing

discrimination in violation of Title VII are analyzed under the same framework

used for Title VII discrimination claims, 2022 MSPB 31, ¶¶ 30, 33, a “but-for”

standard applies to a claim of retaliation for requesting a reasonable

accommodation for a disability or opposing disability discrimination, id.,

¶¶ 44-47. Here, the appellant’s underlying EEO activity appears to include both

Title VII claims and disability discrimination claims. ID at 54 -55. Consideration

of the appellant’s claims under the frameworks set forth in Pridgen does not

change the result. To the extent that the initial decision analyzed the appellant’s

claims of reprisal in connection with opposing disability discrimination under the

lower motivating factor standard, we discern no error in the administrative

judge’s reasoning. See Pridgen, 2022 MSPB 31, ¶ 48. We also find no reason to

disturb the administrative judge’s conclusion that the appe llant failed to establish

that her Title VII-related activity was a motivating factor in the removal decision.

Having considered the appellant’s arguments and the record in this matter, we

further find that the appellant has failed to prove her retaliation claims by any

other method. See id., ¶¶ 23-24.

¶21 Based on the foregoing, we affirm the administrative judge’s decision to

sustain the appellant’s removal.

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NOTICE OF APPEAL RIGHTS 5

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

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

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

5

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

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

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

15

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

Protection Board, 582 U.S. 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

16

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

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

with the EEOC no later than 30 calendar days after your representative receives

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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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. 6 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

6

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

18

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

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

any attorney will accept representation in a given case.

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.