Opinion

Hassan Hwig v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Aug 25, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 8.7%

stating that lack of candor is a flexible charge involving a failure to provide complete and accurate information but not requiring proof of intent

How later courts described this case

stating that lack of candor is a flexible charge involving a failure to provide complete and accurate information but not requiring proof of intent
stating that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HASSAN HWIG, DOCKET NUMBER

Appellant, DC-0752-18-0368-I-1

DEPARTMENT OF THE NAVY, DATE: August 25, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.

Kathleen A. Giacolone, Portsmouth, Virginia, for the agency.

Lauren Leathers, Falls Church, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

reversed the appellant’s removal for failing to provide the agency information

regarding his arrest. For the reasons discussed below, we GRANT the agency’s

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

petition for review, REVERSE the initial decision, and AFFIRM the agency’s

action removing the appellant.

BACKGROUND

¶2 The agency employed the appellant as a GS-9 Polysomnographic

Technician. Initial Appeal File (IAF), Tab 6 at 26. On August 16, 2016, he was

arrested for misdemeanor sexual battery in connection with an alleged incident at

his non-Federal part-time job. Id. at 66, 104. In October 2016, the agency’s

assistant security manager informed him that the Department of Defense

Consolidated Adjudication Facility required information about his arrest to make

a security clearance determination and requested that he provide “all details about

the sexual battery charge, to include what led to this charge (the story behind the

incident), fines, imprisonment, rehabilitation, disposition, etc.” Id. at 62-64, 118.

The appellant provided a copy of the arrest warrant and a letter from his attorney

stating that his case was scheduled for trial on November 4, 2016, in the

Chesapeake General District Court. Id. at 65-66, 118; IAF, Tab 14, Hearing

Compact Disc (HCD) (testimony of the assistant security manager). On

November 4, 2016, the district court found him guilty and sentenced him to

365 days incarceration with 325 days suspended. IAF, Tab 6 at 105, 120. The

appellant, through his attorney, appealed the district court judgment to the circuit

court. Id. at 72, 104; HCD (testimony of the appellant).

¶3 Between November 2016 and June 2017, while the circuit court appeal was

pending, the assistant security manager emailed the appellant at least five times

requesting information and documentation regarding his court date. IAF, Tab 6

at 67-71. The appellant went to the assistant security manager’s office

approximately eight to ten times during this period to discuss his court case, but

he did not disclose that he had been convicted by the district court or that he had

filed an appeal to the circuit court; instead, he repeatedly stated that his trial had

been rescheduled and was “continued” or “continuing.” HCD (testimony of the

appellant and the assistant security manager). He testified that he asked the

assistant security manager to contact his criminal defense attorney for

information because he did not understand the situation but that the assistant

security manager did not do so. HCD (testimony of the appellant). In June 2017,

the assistant security manager searched the district court’s online case

information system and discovered that the appellant had been found guilty and

sentenced on November 4, 2016, and that he had appealed the judgment to the

circuit court. HCD (testimony of the assistant security manager); IAF, Tab 6

at 120. The assistant security manager also looked at the circuit court’s online

docket and discovered that the appellant’s trial was scheduled for July 11, 2017. 2

HCD (testimony of the assistant security manager); IAF, Tab 6 at 72. In a

June 2017 meeting with the appellant, his supervisor, and the assistant security

manager, the appellant stated that his court date had been postponed multiple

times, but he did not disclose that he had been found guilty or that he had filed an

appeal. HCD (testimony of the appellant, his supervisor, and the assistant

security manager). Although the appellant invited them to contact his criminal

defense attorney for information, they testified that it was his burden to provide

information about his criminal case and that it was not their responsibility to

contact his lawyer for information. HCD (testimony of the appellant, his

supervisor, and the assistant security manager). The agency placed the appellant

on administrative leave pending an investigation into his conduct on June 30,

2017. IAF, Tab 6 at 134-35.

¶4 After a July 11, 2017 trial, the Circuit Court for the City of Chesapeake

dismissed the charge against the appellant. IAF, Tab 6 at 106. In February 2018,

the circuit court granted his petition to have all records of the criminal charge

expunged from his record. IAF, Tab 10 at 12-13.

The docket report reflects that the appellant’s circuit court trial was rescheduled four

times. IAF, Tab 6 at 72.

¶5 On December 13, 2017, the agency proposed to remove the appellant on the

basis of one charge of failing to provide information regarding his arrest

supported by the following narrative specification:

On August 16, 2016, you were arrested for sexual battery of a

woman you administered a sleep study to at an outside sleep

laboratory. Upon your return to work, I asked you about the status

of your arrest and you told me that the arrest was a misunderstanding

and you were taking care of it. In October 2016, the assistant

security manager requested details about the arrest and disposition in

order for the Defense Consolidation Adjudication Facility

(DODCAF) to make a determination about your security clearance.

In October 2016, you provided him a letter from your lawyer

indicating a November 4, 2016 court date. Upon further requests

from me and the assistant security manager for information about the

outcome of your November 4, 2016 court date, you failed to disclose

that on November 4, 2016 you were convicted in Chesapeake

General District Court of sexual battery and sentenced to 365 days of

confinement, with 325 of those days suspended. Instead you

repeatedly told me and the assistant security manager that your

November 4, 2016 court date had been continued. After conducting

a search of the Virginia Courts Case Information system in mid -June

2017, the assistant security manager learned that you had been

convicted of sexual battery on November 4, 2016 and that you were

scheduled for another trial on July 11, 2017. When you were asked

by the assistant security manager in late-June 2017 about what he

found, you denied going to trial and having been found guilty.

Additionally, in your statement during the command’s July 2017

fact-finding investigation, you wrote that you were not told that you

were guilty or not guilty, despite court records from November 2016,

to the contrary. To date, the only documentation you provided to the

assistant security manager was the arrest warrant and an October 5,

2016 letter from your lawyer stating the hearing was scheduled for

November 16, 2016. You also provided a June 8, 2017 court order

and a blank expungement petition to the investigating officer during

the July 2017 fact-finding investigation.

IAF, Tab 6 at 96-97. The appellant provided an oral response to the proposed

removal, insisting that he had been honest and that he had continually asked the

assistant security manager to contact his lawyer for information . Id. at 90-94. In

a March 1, 2018 decision letter, the deciding official found the charge supported

by the evidence and removed the appellant effective March 9, 2018. Id. at 28-31.

¶6 The appellant timely appealed his removal to the Board, requested a

hearing, and raised an affirmative defense of retal iation for equal employment

opportunity (EEO) activity. IAF, Tab 1. In an order and summary of the status

conference, the administrative judge informed the parties that he construed the

agency’s charge as one involving lack of candor, set forth the appli cable law and

burdens of proof, and stated that, if either party disagreed with the order and

summary, they must file a written objection within 5 days. IAF, Tab 8. Neither

party submitted an objection.

¶7 After holding a hearing by video teleconference, the administrative judge

issued an initial decision finding that the agency failed to prove the charge,

nexus, or the reasonableness of the penalty and reversed the agency’s action.

IAF, Tab 16, Initial Decision (ID) at 8-15, 22. He also found that the appellant

failed to prove his EEO reprisal affirmative defense. ID at 20 -22. The agency

has filed a petition for review of the initial decision, the appellant has responded,

and the agency has replied. Petition for Review (PFR) File, Tabs 1, 3-4. 3

It is undisputed that the agency provided interim relief. Specifically, the appellant

submitted with his response a Standard Form 50 reflecting that the agency canceled his

removal as of its effective date. PFR File, Tab 1, Tab 3 at 9, 11. The appellant argues

that, because the agency canceled the removal in its entirety and began processing his

back pay, the appeal must be dismissed as moot. PFR File, Tab 3 at 9. In its reply, the

agency argues that it attempted in good faith to comply with the interim relief order and

that, although it inadvertently exceeded the interim relief order, the appeal is not moot.

PFR File, Tab 4 at 5-6. We find that the agency has exceeded the requirements of the

interim relief order by canceling the removal rather than reinstating the appellant from

the date of the initial decision. Although an argument could be made that the agency’s

petition for review should be dismissed because canceling the action from its effective

date rendered the petition moot, the Board has held that such an action does not require

dismissal. See Nanette v. Department of the Treasury, 92 M.S.P.R. 127, ¶ 13 n.1 (2002)

(declining to dismiss an agency’s petition for review as moot when the agency has in

good faith and inadvertently exceeded the requirements of an interim relief order),

aff’d, 155 F.3d 568 (Fed. Cir. 1998) (Table). Accordingly, the Board exercises its

discretion not to dismiss the agency’s petition for review despite the fact that the

ANALYSIS

The agency proved the charge by preponderant evidence.

¶8 As noted above, the administrative judge construed the agency’s charge of

failure to provide information regarding the arrest and accompanying narrat ive

specification as a charge of lack of candor. IAF, Tab 8 at 2. The parties have not

challenged the administrative judge’s decision to construe the charge in this

manner, and we agree that the charge and specification read together reasonably

allege that the appellant lacked candor. See George v. Department of the Army,

104 M.S.P.R. 596, ¶ 7 (2007) (providing that, in resolving the issue of how a

charge should be construed, the Board examines the structure and language of the

proposal notice and the decision notice, as well as the accompanying

specifications and circumstances), aff’d, 263 F. App’x 889 (Fed. Cir. 2008); see

also Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)

(stating that lack of candor is a flexible charge involving a failure to provide

complete and accurate information but not requiring proof of intent). Therefore,

we do not disturb the administrative judge’s decision to construe the charge as

one of lack of candor.

An agency alleging lack of candor must prove the following elements by a

preponderance of the evidence: (1) that the employee gave incorrect or

incomplete information; and (2) that he did so knowingly. 4 Gardner v.

Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 23 (2016), clarified on other

grounds by Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶¶ 23-24. When, as here, the agency’s charge contains a narrative

appellant submitted evidence showing that the agency exceeded the interim relief order.

See, e.g., Lavette v. U.S. Postal Service, 96 M.S.P.R. 239, ¶¶ 12-15 (2004) (declining to

dismiss the agency’s cross petition for review despite evidence that it exceeded the

requirements of the interim relief order by canceling the action appealed) .

A preponderance of the evidence is defined as the degree of relevant evidence that a

reasonable person, considering the record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

explanation for the basis of its action, the agency may sustain its charge by

proving one or more of the incidents described therein; proof of every incident is

not required. See Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 204 (1997).

¶9 The administrative judge found that the agency’s narrative specification

alleged the following three separate instances of lack of candor: (1) when the

appellant failed to disclose that he was convicted on November 4, 2016, in district

court of sexual battery and sentenced; (2) when, in June 2017, he “denied going

to trial and having been found guilty”; and (3) when, in July 2017, he wrote that

he was not told that he was “guilty or not guilty.” ID at 8-9. The administrative

judge found that the agency did not prove that the appellant lacked candor by

denying he was convicted or found guilty because, under Virginia state law

governing misdemeanor prosecutions, an appeal to the circuit court annuls the

judgment of the district court as if there had been no previous trial and entitles a

defendant to de novo review in the circuit court. ID at 11-12. He also found that,

even if the appellant expressly denied going to trial, there was no evidence that he

knew such statement was incorrect given his unrefuted hearing testimony about

his November 4, 2016 court appearance—namely, that he sat in a large courtroom

while other proceedings were conducted, he was not allowed to testify or offer

exculpatory video evidence, and his attorney told him not to worry and that there

would be another proceeding before a new judge. ID at 12-13. He further found

that the fact that the appellant offered to have the agency officials contact his

attorney undermined the agency’s theory that he was attempting to obfuscate the

existence of his district court proceeding and observed that the circuit court

docket entries confirmed the appellant’s assertion that his court date had been

rescheduled. ID at 13. Finally, he found that the appellant’s confusion about the

proceedings and the proper terms to apply to them were reasonable in light of

Virginia’s unique binary criminal trial process and the fact that he was not trained

in the law. ID at 13-14. Thus, he did not sustain the charge. ID at 14.

¶10 On review, the agency argues that the Virginia law that annulled the

appellant’s conviction upon appeal cannot supersede Executive Order 12968 and

its implementing regulations, which require the appellant to provide any and all

relevant information for the purposes of a security clearance determination , and

that the administrative judge erred when he relied on state law to excuse the

appellant from disclosing information required by the executive order. PFR File,

Tab 1 at 9-18. The agency further argues that it proved the charge because it is

undisputed that the appellant was convicted and sentenced at the November 4,

2016 trial but that he failed to disclose the conviction to anyone at the agency at

any time between November 2016 and June 2017. Id. at 18-25. The agency

claims that, even if the appellant was confused about the November 4, 2016

district court proceeding, he provided incomplete and inaccurate information to

the assistant security manager when he told him that his case was continued

rather than truthfully disclosing that there had been a court proceeding but that he

was confused and did not understand the process. Id. at 20. The agency argues

that the record establishes an element of deception on the part of the appellant

because he knew he was obligated to provide information regarding his arrest and

criminal proceedings for the purposes of a security clearance determination but,

assuming as true that he was confused about the nature and outcome of his district

court proceeding, he chose to remain ignorant, did not seek clarification from his

attorney, and falsely denied going to court. Id. at 20-24.

¶11 We disagree with the agency’s contention that the administrative judge

erred in considering Virginia state law in determining whether the appellant

provided incorrect or inaccurate information regarding his Virgini a state criminal

proceedings and conviction. However, the fact that the appellant’s conviction

was legally annulled upon the filing of an appeal does not establish that he

provided complete and accurate information to the agency regarding his court

case. While lack of candor need not involve an affirmative misrepresentation , it

“may involve a failure to disclose something that, in the circumstances, should

have been disclosed to make the statement accurate and complete.” O’Lague v.

Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 13 (2016) (quoting Ludlum

v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)).

¶12 Here, as noted above, the agency alleged that the appellant lacked candor

when, although he was on notice that he was required to provide the agency

information regarding his court case for purposes of a security clearance

determination, he failed to disclose that he had been convicted, found guilty, or

sentenced and instead repeatedly told the assistant security manager that his court

date had been “continued.” IAF, Tab 6 at 96-97. Although we defer to the

administrative judge’s determination based on hearing testimony that the

appellant was confused about the nature and outcome of his district court

appearance, we find that he failed to disclose information known to him that

would have made his responses accurate and complete. Specifically, as his

hearing testimony confirms, he was aware that he attended a court proceeding

regarding his misdemeanor charge of sexual battery on November 4, 2016, and

that the judge rendered a decision at that time. HCD (testimony of the appellant).

In addition, he testified that his attorney told him that the judge made the wrong

decision and that he would have a second trial. Id. In failing to disclose this

information and instead maintaining that his case was “continuing” or

“continued,” the appellant knowingly provided incomplete and inaccurate

information that gave the wrong impression about the status and progression of

his court case. The fact that the appellant invited his supervisor and the assistant

security manager to contact his criminal defense attorney for information does not

negate the fact that he provided them incomplete and inaccurate information.

Thus, we find that the agency proved that the appellant lacked candor and sustain

the charge. See O’Lague, 123 M.S.P.R. 340, ¶ 13.

The agency established nexus.

¶13 In addition to the requirement that the agency prove the charge it has

brought against the appellant, the agency must also prove that there is a nexus,

i.e., a clear and direct relationship between the articulated grounds for the adverse

action and the appellant’s ability to satisfactorily accomplish his duties or some

other legitimate government interest. Canada v. Department of Homeland

Security, 113 M.S.P.R. 509, ¶ 10 (2010). In the initial decision, the

administrative judge found that, even if he sustained the charge, it was unclear

whether the appellant’s removal for failure to disclose an intermediate step in his

criminal proceedings promoted the efficiency of the service. ID at 14 n.6. We

disagree. An employer has a right to expect its workers to be honest, trustworthy,

and candid, and lack of candor strikes at the heart of the employer -employee

relationship and directly impacts the efficiency of the service . Ludlum v.

Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d 1280 (Fed.

Cir. 2002). Here, as discussed above, the appellant knowingly failed to provide

complete and accurate responses to the agency’s requests for information

regarding his criminal court proceeding for the purposes of a security clearance

determination over the course of approximately 7 months . Accordingly, we find

that the agency established a nexus between its action and the efficiency of the

service. See id., ¶¶ 14-25, 28 (finding that the appellant’s failure to respond fully

and truthfully during an administrative investigation directly impacted the

efficiency of the service).

The appellant failed to establish his EEO reprisal affirmative defense.

¶14 To establish a claim of EEO reprisal, an appellant must show that the

prohibited consideration was at least a motivating factor in the personnel action at

issue. Pridgen, 2022 MSPB 31 , ¶¶ 21-22. Here, the appellant argued that his

removal was motivated by his prior EEO activity and, in support of this claim,

pointed to the temporal proximity between the prior activity and the removal, the

involvement of the deciding official in both proceedings, and the absence of a

legitimate basis for his removal. HCD (closing argument by the appellant). In

the initial decision, the administrative judge considered these arguments but

found that the appellant failed to show that his removal was motivated by

retaliatory animus. ID at 20-22. Specifically, he found that the 20-month lapse

in time between the 2016 settlement agreement resolving the appellant’s EEO

complaint and the December 2017 proposed removal weighed against finding that

the EEO activity was causally connected to the adverse action. ID at 22 (citing

Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001), which

explained that temporal proximity between protected EEO activity and an adverse

action “must be ‘very close,’” and an “[a]ction taken . . . 20 months later

suggests, by itself, no causality at all”). He further found that the deciding

official testified in a convincing manner that his personal involvement in the

appellant’s prior EEO complaint had no bearing on his removal decision. ID

at 22. We agree that a 20-month lapse of time does not suggest causality and

discern no basis to disturb the administrative judge’s implicit demeanor-based

determination that the deciding official credibly denied that he was motivated by

retaliatory animus. See Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (stating that the Board must give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing ). Because

we affirm the administrative judge’s finding that the appellant failed to show that

any prohibited consideration was a motivating factor in the agency’s action, we

need not resolve the issue of whether the appellant proved that retaliation was a

“but-for” cause of the agency’s decision. See Pridgen, 2022 MSPB 31,

¶¶ 20-22, 29-33.

The penalty of removal is reasonable.

¶15 When, as here, all of the agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

the relevant factors and exercised management discretion within the tolerable

limits of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11

(2010); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)

(articulating a nonexhaustive list of 12 factors that are relevant in assessin g the

appropriate penalty for an act of misconduct). In making this determination, the

Board must give due weight to the agency’s primary discretion in maintaining

employee discipline and efficiency, recognizing that the Board ’s function is not

to displace management’s responsibility, but to ensure that managerial judgment

has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11. The Board will

modify or mitigate an agency-imposed penalty only when it finds the agency

failed to weigh the relevant factors or the penalty clearly exceeds the bounds of

reasonableness. Id.

¶16 In the initial decision, the administrative judge stated that, even if he had

sustained the charge, he would find that the deciding official did not properly

exercise his judgment because he improperly relied on the underlying nature of

the misdemeanor charge against the appellant and his annulled conviction in his

consideration of the Douglas factors. ID at 14-15. He also found that removal

exceeded the tolerable limits of reasonableness given the de minimis nature of the

offense and the specific facts surrounding the appellant’s criminal proceedings

under Virginia law. ID at 16. The agency challenges these finding on review.

PFR File, Tab 1 at 25-27.

¶17 The record reflects that the deciding official carefully considered the

relevant Douglas factors in determining the appropriate penalty. IAF, Tab 6

at 32-35. Specifically, he found as aggravating factors the following: the nature

and seriousness of the appellant’s failure to be truthful to avoid the possibility of

losing his security clearance, which was a condition of his employment;

management’s loss of trust and confidence in the appellant following his

“prolonged concealment of information”; his May 24, 2016 letter of reprimand

for disrespectful conduct; the notoriety of the offense; and the fact that the

appellant was on notice of his obligation to provide inf ormation regarding any

action taken as a result of his arrest for the purposes of a security clearance

determination. Id. He appeared to consider as mitigating factors the appellant’s

11.5 years of service and recent increase in productivity. Id. at 33. He also

considered the appellant’s claim that his attorneys advised him not to discuss his

case with anyone but found that there were times the appellant talked about his

case and that he “conveniently picked and chose what [he] wanted to share” and

was attempting to use his attorneys as a “shield” from his misconduct. Id. at 35.

In addition, he considered the absence of comparator evidence, the table of

penalties, and the adequacy and effectiveness of alternative sanctions but

concluded that removal was the appropriate penalty. Id. at 32-35.

¶18 We disagree with the administrative judge’s conclusion that the deciding

official impermissibly relied on the underlying nature of the misdemeanor charge

or the district court conviction in determining the appropriate penalty. IAF,

Tab 6 at 32-35. While the deciding official indicated on his Douglas factors

worksheet that the appellant “failed to tell the command the result of [his]

November 4, 2016 court appearance in which [he was] convicted of sexual

battery,” he also acknowledged that the appellant appealed the conviction, was

later found not guilty, and had his record expunged. Id. at 32. Thus, it is clear

that the deciding official did not consider the annulled conviction to b e the final

disposition of the appellant’s criminal case. In addition, as discussed above, the

agency proved that the appellant lacked candor when he failed to disclose

important steps in the course of his criminal proceeding —specifically, that he

attended a court proceeding, received a decision, and filed an appeal —and instead

led the agency to believe that his court case had simply been continued. As such,

the deciding official properly considered the appellant’s failure to be truthful

about his court proceeding in his assessment of the appropriate penalty.

Furthermore, although the deciding official mentioned the nature of the

misdemeanor charge in his discussion of several of the Douglas factors, he

emphasized that he had lost trust in the appellant because of his failure to be

truthful, not because of the factual basis of the charge. Id. at 32-35.

¶19 In light of the foregoing, we find that the deciding official properly

considered the relevant Douglas factors and properly exercised his managerial

judgment in imposing the appellant’s removal. Moreover, we find that the

penalty of removal does not exceed the tolerable limits of reasonableness for the

sustained charge of lack of candor. See, e.g., Smith v. Department of the Interior,

112 M.S.P.R. 173, ¶ 26 (2009) (finding the penalty of removal appropriate for

lack of candor and unauthorized absences); Kamahele v. Department of Homeland

Security, 108 M.S.P.R. 666, ¶¶ 2, 15 (2008) (finding the penalty of removal

reasonable when the appellant demonstrated lack of candor and inappropriate

conduct).

NOTICE OF APPEAL RIGHTS 5

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)). 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 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).

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.

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