Opinion

Lisa Aki Martin v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 11, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 5.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA AKI MARTIN, DOCKET NUMBER

Appellant, SF-0752-21-0142-I-1

DEPARTMENT OF DEFENSE, DATE: August 11, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daphne E. Barbee, Esquire, Honolulu, Hawaii, for the appellant.

Loraine Kovach-Padden, Esquire, and Ryan L. Wischkaemper, 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, which

affirmed the appellant’s removal for medical inability to perform. For the reasons

discussed below, we GRANT the appellant’s petition for review , REVERSE the

initial decision as it relates to the merits of the charge, and VACATE the finding

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

that the agency met the clear and convincing standard in the whistleblower

reprisal analysis.

BACKGROUND

¶2 The appellant was employed as a GS-9 International Transportation

Specialist (ITS) with the Defense Prisoner of War/Missing in Action Accounting

Agency (DPAA) at Joint Base Pearl Harbor-Hickam in Honolulu, Hawaii. Initial

Appeal File (IAF), Tab 8 at 4. DPAA is tasked with identifying and repatriating

the remains of service members who died in past conflicts. Hearing Transcript

(HT) (testimony of the appellant’s supervisor). As an ITS, the appellant was

responsible for, among other things, assisting DPAA employees and other

officials with travel needs, such as performing passport agent du ties, including

collecting and processing documents containing personally identifiable

information (PII) for passport applications. HT (testimony of the appellant,

testimony of the appellant’s supervisor); IAF, Tab 8 at 13. DPAA’s travel

department, i.e., the appellant’s department, was located in building 4077 on the

base. HT (testimony of the appellant’s supervisor). Building 4077 was the only

building at the agency’s Hawaii facility that had been certified by the Special

Issuance Agency (SIA), a component of the Department of State, as an official

passport site, certifying that the building is qualified to maintain the integrity of

passport materials. Id.

¶3 After a verbal incident with a co-worker, 2 the appellant submitted a request

for reasonable accommodation, attaching a doctor’s note stating that she should

no longer have any contact with her co-worker because she feared for her safety

and it was causing her severe anxiety. IAF, Tab 14 at 25 -27. As an

The incident did not include any physical violence against the appellant, was reported

to and reviewed by the appellant’s supervisor, and does not appear to have resulted in

discipline for either the appellant or the co-worker. HT (testimony of the appellant’s

supervisor, testimony of the appellant).

accommodation, the appellant’s doctor recommen ded that she either be

transferred to building 45 3 or to another work section, or that she be allowed to

telework on the days that her co-worker was in building 4077, which was

approximately 9 days per pay period. Id. In February 2017, the agency granted

the appellant’s request to physically relocate to building 45 on a provisional

basis, initially suspending her passport agent duties, until it formally granted her

request for accommodation in November 2017, when it modified the passport

duties to account for her relocation to building 45. IAF, Tab 14 at 19 -20, Tab 69

at 28-30.

¶4 However, in March 2019, the agency alerted the appellant that it was

reviewing her accommodation because it had “become clear that [she was] unable

to perform the essential functions of [her] position” due to various incidents of

misconduct, as well as numerous unscheduled absences. IAF, Tab 14 at 21-22.

In response, the appellant submitted an updated medical note reiterating her need

to avoid any contact with the co-worker, and the appellant’s doctor conducted a

site visit to buildings 45 and 4077, confirming that the appellant could not

perform her duties in building 4077 as long as the co-worker was still employed.

Id. at 4-5; IAF, Tab 8 at 24-26.

¶5 On April 13, 2020, the agency finalized its reasonable accommodation

review, finding that the appellant’s location in building 45 created an undue

hardship because it no longer trusted her to perform the essential functions of her

position without direct, on-site supervision. IAF, Tab 63 at 27-29. Specifically,

the agency based its finding on several instances of misconduct by the appellant,

i.e., bringing children to work, repeatedly failing to follow instructions, and

insubordination, as well as the fact that she had been placed on leave restriction

because she had taken 522 hours of unscheduled leave. Id. at 28. Thus, it

Building 45 was approximately four or five miles away from building 4077. HT

(testimony of the appellant’s supervisor).

determined that there was no reasonable accommodation that would allow her to

perform the essential functions of her job because her medical restrictions

prevented her from working in building 4077 where she would have direct,

on-site supervision. Id. at 27-29. Subsequently, the agency removed the

appellant for medical inability to perform effective May 21, 2020, citing to the

same reasons it relied on in revoking the appellant’s accommodation. IAF, Tab 8

at 4-10.

¶6 The appellant filed a formal complaint of discrimination alleging that her

removal was based on disability discrimination and in retaliation for her equal

employment opportunity (EEO) activity. IAF, Tab 7 at 106. Once the agency

issued its final agency decision denying the appellant’s discrimination claims, she

filed a timely Board appeal. Id. at 105-23; IAF, Tab 1. After holding a hearing,

the administrative judge issued an initial decision affirming the appellant’s

removal, finding that the agency proved its charge of medical inability to

perform, and denying the appellant’s affirmative defenses of disability

discrimination, EEO retaliation, whistleblower reprisal, due process violations,

and harmful procedural error. IAF, Tab 104, Initial Decision (ID).

¶7 The appellant has filed a petition for review disputing, in part, the

administrative judge’s findings regarding the merits of the charge, arguing that

she could perform the essential functions of her position, and that relocation to

building 45 was an effective accommodation, as she could perform her duties,

including “the bulk of her passport duties.” Petition for Review (PFR) File,

Tab 1 at 7, 13-14, 16. She also renews her affirmative defenses, including that

her removal was in retaliation for her “whistleblower complaint.” Id. at 18-32.

The agency has filed a response in opposition to the appellant’s petition for

review. PFR File, Tab 3. The appellant then filed a reply to the agency’s

response, reiterating the arguments made in her petition for review. PFR File,

Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency failed to prove its charge of medical inability to perform because it

failed to establish that on-site supervision was a core duty of the appellant’s

position.

¶8 When, as here, the appellant does not occupy a position with medical

standards or physical requirements or subject to medical evaluation programs, in

order to establish a charge of medical inability to perform, the agency must prove

a nexus between the employee’s medical condition and observed deficiencies in

her performance or conduct, or a high probability, given the nature of the work

involved, that her condition may result in injury to herself or others. Fox v.

Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014). In other words, the

agency must establish that the employee’s medical condition prevents her from

being able to safely and efficiently perform the core duties of her position. Id.

¶9 In the decision letter, the agency explained that it removed the appellant

because it “determined that a reasonable accommodation does not exist that

would enable [her] to safely and efficiently perform the core duties of [her]

position without direct, on-site supervision.” IAF, Tab 8 at 9. The administrative

judge, following the lead of the agency, sustained the medical inability to perform

charge because he found that the agency had proven that the appellant required

on-site supervision due to her repeated misconduct and unschedu led absences

while working from building 45. ID at 20-25. Thus, per the agency’s crafting of

the removal, the issue before us is whether the agency has proven that on-site

supervision is a core duty of the appellant’s position which she is unable to

satisfy due to her medical condition.

¶10 We find that it did not. There is no evidence in the record, nor has the

agency even argued, that the appellant’s position required on -site supervision as

part of her core duties. There is no reference in the appellant’s position

description or performance plan to on-site supervision. IAF, Tab 8 at 11-17,

Tab 14 at 50-77. In fact, the agency made it abundantly clear both in its

documents and its testimony that the appellant was removed because it had lost

faith in her ability to perform her core duties in building 45, away from on-site

supervision, due to her repeated misconduct and unscheduled absences. IAF,

Tab 8 at 9, 21; HT (testimony of the appellant’s supervisor, testimony of the

deciding official, agency’s closing arguments). However, none of this evidence

supports a finding that the need for on-site supervision was a core duty of the ITS

position. In other words, the need for on-site supervision was a product of the

appellant’s purported misconduct, and not a requirement of the position itself.

Accordingly, contrary to the administrative judge’s findings, we do not find that

the agency proved the medical inability to perform charge because it failed to

prove that the appellant could not perform an essential function of her position

due to her medical condition. ID at 26.

¶11 We are aware that there is evidence in the record that an essential function

of the appellant’s job, i.e., passport agent duties, required her to be located in

building 4077. 4 HT (testimony of the appellant’s supervisor,); IAF, Tab 8 at 13;

Tab 14 at 54, 64, 73, Tab 101 at 57-64. Indeed, even the appellant states that she

could perform the “bulk” of her passport agent duties from building 45,

essentially conceding that she could not perform all of them. PFR File, Tab 1

at 13-14. However, the agency did not base her removal for medical inability to

perform on her inability to perform the full range of her passport agent duties.

IAF, Tab 8 at 5-10; HT (agency’s closing argument). Instead, it argued that she

was medically unable to perform because she required on -site supervision, which,

as noted, is not a core duty of her position, but a requirement unique to the

appellant due to her repeated misconduct. 5 IAF, Tab 8 at 9; HT (agency’s closing

argument).

As noted, building 4077 was the only building at the agency’s Hawaii facility that had

been certified by the SIA as an official passport site, and thus certain essential

functions of the appellant’s position could only be performed in that building.

There is no suggestion in the record that the appellant’s purported misconduct was

caused by her medical condition. Thus, while misconduct that is the result of a medical

¶12 The Board will not sustain an agency action on the basis of charges that

could have been brought, but were not. Stuhlmacher v. U.S. Postal Service,

89 M.S.P.R. 272, ¶ 14 (2001). Further, the Board adjudicates an agency’s charge

as it is described in the agency’s proposal and decision notices. Id.; Rackers v.

Department of Justice, 79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d 1336 (Fed.

Cir. 1999) (Table). Accordingly, we are bound by the basis chosen by the

agency, and thus, because the agency failed to prove its charge as written, we

must reverse the agency action. We make no finding as to whether the agency

could have successfully removed the appellant based on her medical inability to

perform the essential functions of her passport agent responsibilities or based on

her purported misconduct while working in building 45. 5 U.S.C. § 1204(h)

(providing that the Board is prohibited from issuing advisory opinions).

The appellant failed to establish that the administrative judge erred in denying her

affirmative defenses of disability discrimination and EEO retaliation.

¶13 On review, the appellant disputes the administrative judge ’s findings

denying her affirmative defenses of disability discrimination. PFR File, Tab 1

at 22-26. The administrative judge thoroughly considered the appellant’s

arguments and his findings are detailed, thorough, and based in the record. ID

at 28-38. Accordingly, we discern no reason to disturb them. Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (1997) (explaining that the Board will not

disturb an administrative judge’s findings when she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions on issues of

credibility); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same). 6

condition can support an inability to perform charge, see Powitz v. Office of Personnel

Management, 82 M.S.P.R. 56, ¶¶ 7-8 (1999), those circumstances are not present here.

The appellant also disputed the administrative judge’s findings denying her claims of

due process violations and harmful procedural error. PFR File, Tab 1 at 18-22.

Because her arguments were thoroughly analyzed and considered by the administrative

¶14 The appellant also argues that the administrative judge erred in his analysis

of her claim of retaliation for complaints of disability discrimination and requests

for reasonable accommodation. PFR File, Tab 1 at 26-30; see Pridgen v. Office

of Management and Budget, 2022 MSPB 31, ¶ 44. To prove retaliation for

complaints of disability discrimination and requests for reasonable

accommodation, the appellant must show that her prior EEO activity was a

“but-for” cause of her removal, a more stringent standard than the motivating

factor standard applied by the administrative judge. Pridgen, 2022 MSPB 31,

¶¶ 44-46. However, because the appellant did not even satisfy the lesser

motivating factor standard, she cannot satisfy the more stringent “ but-for”

standard, and thus, she was not prejudiced by the administrative judge’s use of

the motivating factor standard. 7 See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

judge, and he came to well-reasoned conclusions, we discern no basis for disturbing

them. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (explaining that the

Board will not disturb an administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned conc lusions on

issues of credibility); Broughton v. Department of Health and Human Services,

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

The administrative judge applied the framework set forth in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-04 (1973) to the appellant’s claim of

disability discrimination based on her disabled status. ID at 34-38. In Pridgen,

2022 MSPB 31, ¶¶ 40, 42, the Board explained that for status-based disability

discrimination claims, an appellant is entitled to some relief, i.e., injunctive relief, if

she satisfies the motivating factor standard, but in order to obtain full relief, she must

show that disability discrimination was a but-for cause of the personnel action.

Because we agree with the administrative judge that the appellant is not a qualified

individual with a disability, it was not prejudicial to the appellant to not evaluate her

claim under a motivating factor standard of proof. Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision).

Because the appellant failed to establish that she made a protected disclosure

under 5 U.S.C. § 2302(b)(8), the subsequent finding that the agency met the clear

and convincing standard must be vacated.

¶15 In the initial decision, the administrative judge found that the appellant did

not establish that she made a protected disclosure when she objected to a request

from a sergeant major (SM) to change travel authorizations for a group of

individuals to accommodate off-base lodging. ID at 42-45. Specifically, he

found that the appellant did not have a reasonable basis for believing that her

disclosures evidenced a violation of law, rule, or regulation, or constituted a gross

waste of funds, noting that the appellant did not identify any law, rule, or

regulation the SM allegedly violated, and any difference in costs was nothing

more than a debatable expenditure. ID at 45. Nevertheless, the administrative

judge continued in the whistleblower reprisal analysis, finding that if the

disclosure were protected, the appellant would meet the contributing factor

standard, but the agency would prove by clear and convincing evidence that it

would have removed her absent any whistleblower activity. ID at 45 -48.

¶16 On review, the appellant disputes the administrative judge’s findings,

asserting that “[i]t was clear [that she] felt there was fraud and waste going on

and if she had to adhere to travel rules, so did her s upervisor.” PFR File, Tab 1

at 31. The appellant offers nothing more than conclusory assertions that she

disclosed “waste and fraud,” but she fails to explain with any specificity how her

disclosure evidenced the type of misconduct set forth in section 2302(b)(8)(A). 8

To the extent that the appellant asserts on review that the agency retaliated against her

in violation of 5 U.S.C. § 2302(b)(9)(C) because she filed an Inspector General (IG)

complaint, the appellant clarified during the prehearing conference that her

whistleblower reprisal claim was “based on the whistleblowing disclosure itself

involving a disclosure of waste and fraud . . . rather than her contact with the IG.” IAF,

Tab 100 at 4. In the prehearing order, the administrative judge included a summary of

matters to be decided, including “[w]histleblower retaliation based on a disclosure of

fraud and waste to Sergeant Major (SM) . . . about the SM’s improper decision to

authorize travel expenditures. . . .” Id. at 4. The administrative judge provided the

parties with an opportunity to file objections or exceptions to the prehearing order. Id.

Id. at 30-32. Accordingly, as the administrative judge correctly applied the law

to the facts of this case to find that the appellant had not established that she

made a protected disclosure under 5 U.S.C. § 2302(b)(8)(A), we discern no basis

for disturbing his finding. Crosby, 74 M.S.P.R. 98, 106; Broughton, 33 M.S.P.R.

357, 359.

¶17 However, once the administrative judge made this finding, he should not

have continued in the whistleblower protection analytical framework, because the

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

first determined that the appellant established a prima facie cas e of whistleblower

reprisal. Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10

(2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, because the

appellant did not establish a prima facie case of whistleblower reprisal, we vacate

the administrative judge’s findings that the agency would have met the clear and

convincing evidence standard.

ORDER

¶18 We ORDER the agency to cancel the removal action and restore the

appellant to her GS-9 International Travel Specialist position effective May 21,

2020. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir.

1984). The agency must complete this action no later than 20 days after the date

of this decision.

¶19 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

at 18. The appellant, who was represented both below and on review, did not file any

objection, nor does she expressly argue on review that the administrative judge

mischaracterized the whistleblower reprisal claim. Id.; PFR File, Tab 1 at 30-32.

Accordingly, the appellant is precluded from raising this argument on review. See

Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, ¶ 16 (2014) (finding that

the appellant’s failure to object to the administrative judge’s rulings which precluded

her from raising her affirmative defenses after she waived them prohibited her from

raising the defenses on review).

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶20 We further ORDER the agency to tell the appellant promptl y in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶21 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶22 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timel y provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 9

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.

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.

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

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

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

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 rev iew either with the

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

competent jurisdiction. 10 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).

The original statutory provision that provided for j udicial 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 fo r 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, 2 017. Pub. L. No. 115-195,

132 Stat. 1510.

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