The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN A. MCKINNIS, DOCKET NUMBER
Appellant, DA-1221-18-0200-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: September 7, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Susan L. Kruger, Esquire, Washington, D.C., for the appellant.
Conor Cleary, Tulsa, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Whistleblower Protection Act .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the 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
with respect to the issues of protected activity, contributing factor, and the
agency’s affirmative defense, as set forth in ¶¶ 6-15 below, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant was a GS-12 Auditor for the agency’s Office of Natural
Resources Revenue. McKinnis v. Department of the Interior, MSPB Docket
No. DA-0432-18-0199-I-1, Initial Appeal File (0199 IAF), Tab 1 at 1, 9. 3 The
appellant’s major job duties entailed conducting audits and compliance reviews of
3
The instant appeal was joined, for a time, with McKinnis v. Department of the
Interior, MSPB Docket No. DA-0432-18-0199-I-1, which was the lead case in the
joinder. McKinnis v. Department of the Interior, MSPB Docket No. DA-1221-18-0220-
W-1, Initial Appeal File, Tab 9. Much of the evidence pertinent to the instant
individual right of action appeal is contained in that case file.
3
oil and gas leases on Federal and Indian lands to ensure the proper payment of
royalties. Hearing Recording (HR), Track 1 at 12:40 (testimony of the appellant).
The appellant filed an individual right of action (IRA) appeal, claiming that the
agency took multiple personnel actions against him in retaliation for several
protected disclosures. McKinnis v. Department of the Interior, MSPB Docket
No. DA-1221-18-0220-W-1, Initial Appeal File (0200 IAF), Tab 1, Tab 6 at 4-7.
¶3 After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. 0200 IAF, Tab 16,
Initial Decision (ID). She found that several of the appellant’s claimed
disclosures were not protected, and that the remaining disclosures were either not
contributing factors in the claimed personnel actions or that the agency proved by
clear and convincing evidence that it would have taken the same actions
notwithstanding the disclosures. ID at 7-26. The appellant has filed a petition for
review, disputing the administrative judge’s analysis of the agency’s affirmative
defense with respect to two of the personnel actions at issue: his placement on a
performance improvement plan (PIP) and the removal. 4 Petition for Review
(PFR) File, Tab 1 at 5-9. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶4 In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that he engaged in protected activity described
under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant meets his burden, the Board will order corrective action
4
Also at issue in this appeal were a letter of warning, a grievance decision, a denial of
telework, and a 14-day suspension. ID at 12. The appellant does not challenge the
administrative judge’s findings concerning these personnel actions, and we therefore do
not address these issues on review. See Blackhat v. Department of Health and Human
Services, 117 M.S.P.R. 552, ¶ 3 n.2 (2012); 5 C.F.R. § 1201.115.
4
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected activity. 5 U.S.C.
§ 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5. However, the Board may only address
the agency’s affirmative defense after the appellant has proven his case in chief.
Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). For the
reasons set forth below, we find that the appellant has not proven his case.
¶5 The administrative judge addressed the following alleged protected activit y
in her initial decision: (1) complaints to the agency’s Office of Inspector General
and the Federal Labor Relations Authority, ID at 7-9; (2) disclosures during a
grievance regarding the agency’s alleged violation of travel regulations and the
Family and Medical Leave Act (FMLA), ID at 9; (3) disclosures regarding the
agency’s alleged violation of its leave policy, ID at 10; and (4) equal employment
opportunity (EEO) complaints and participation in an administrative
investigation, ID at 10-11. The administrative judge found that the appellant only
proved with respect to activities (2) and (4) that he engaged in protected activity
that was exhausted before the Office of Special Counsel. ID at 7-11. She also
found that this protected activity was a contributing factor in the PIP and the
removal. ID at 12-15. Although neither party challenges these findings per se,
under the particular circumstances of this case, we find it appropriate to assess
them further. See 5 C.F.R. § 1201.115(e).
¶6 Regarding activity (2), the administrative judge found that the appellant
filed a grievance on July 23, 2016, in which he disclosed that the agency violated
FMLA and travel regulations. ID at 9; 0199 IAF, Tab 13 at 50 -54. She further
found that the appellant’s beliefs in this regard were reasonable and therefore the
disclosures made during the grievance were protected under 5 U.S.C.
§ 2302(b)(8). Id. However, it is well established that disclosures made solely in
the context of a grievance are not protected under 5 U.S.C. § 2302(b)(8). Serrao
v. Merit Systems Protection Board, 95 F.3d 1569, 1575-76 (Fed. Cir. 1996);
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 10 (2016). Nor is
5
there sufficient information for us to conclude that the appellant’s grievance
sought to remedy an alleged violation of 5 U.S.C. § 2302(b)(8), so as to be
covered under 5 U.S.C. § 2302(b)(9)(A)(i). 5 0199 IAF, Tab 13 at 50-54. We
therefore find that the appellant’s July 23, 2016 grievance was protected under
5 U.S.C. § 2302(b)(9)(A)(ii), and so cannot serve as the basis for an IRA appeal.
See Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016);
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
¶7 Regarding activity (4), the administrative judge found that the appellant
engaged in protected activity by filing multiple EEO complaints and participating
in an administrative investigation concerning the working conditions in his office.
ID at 10-11; 0199 IAF, Tab 8 at 11, Tab 12. Specifically, she found that the
allegations of discrimination and hostile work environment in his EEO complaints
and the disclosures that he made during the investigation concerning various
forms of wrongdoing in the workplace constituted protected disclosures under
5 U.S.C. § 2302(b)(8). ID at 10-11. However, as discussed above in connection
with the appellant’s grievance, it is well settled that disclosures made solely in
the context of an EEO complaint are not protected under 5 U.S.C. § 2302(b)(8).
Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690 (Fed. Cir. 1992);
Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 82 (2001). Rather, they
are protected under 5 U.S.C. § 2302(b)(1) and (b)(9)(A)(ii). See Mata v.
Department of the Army, 114 M.S.P.R. 6, ¶ 9 n.3 (2010). We therefore find that
the appellant’s EEO complaints and the disclosures contained therein cannot
serve as the basis for an IRA appeal. 6 See Fisher v. Department of Defense,
52 M.S.P.R. 470, 474 (1992).
5
In his grievance, the appellant surmised that the letter of reprimand that he was
grieving “would appear to be as a result of something personal or in retaliation.”
0199 IAF, Tab 13 at 54. However, he did not specify that he believed the letter of
reprimand was in retaliation for whistleblowing.
6
An EEO complaint may be protected under 5 U.S.C. § 2302(b)(9)(A)(i) if the
complaint sought to remedy a violation of 5 U.S.C. § 2302(b)(8). Bishop v. Department
6
¶8 The appellant’s participation in the administrative investigation, however,
did not constitute the exercise of an appeal, complaint, or grievance right under
5 U.S.C. § 2302(b)(9)(A), and the disclosures that he made during that
investigation are therefore not barred as a matter of law from constituting
protected disclosures under 5 U.S.C. § 2302(b)(8). Further, the administrative
judge found, and neither party disputes, that the appellant made protected
disclosures during his March 8, 2017 investigative interview. ID at 10-11;
0199 IAF, Tab 12 at 9-12. For these reasons, we find that the only protected
activity at issue in this IRA appeal is the appellant’s March 8, 2017 disclosure,
which was protected under 5 U.S.C. § 2302(b)(8)(A). 7
¶9 As relevant here, in her contributing factor analysis, the administrative
judge found that the deciding official in the appellant’s removal had no actual
knowledge of the appellant’s protected activity. ID at 14-15. This finding is both
undisputed and supported by the record. HR, Track 4 at 1:40, 3:30 (testimony of
the deciding official). Nevertheless, the administrative judge found that the
appellant’s first-level supervisor, who placed the appellant on a PIP and proposed
his removal “did not deny that she was aware the appellant participated in the
internal investigation.” ID at 15. Thus, the administrative judge found that the
appellant established that his protected activity was a contributing factor in these
of Agriculture, 2022 MSPB 28, ¶¶ 15-16. There is no indication in this case that the
appellant’s EEO complaints, which he did not submit for the record, sought to remedy
any violations of 5 U.S.C. § 2302(b)(8). See 0199 IAF, Tab 8 at 11, Tab 22 at 5-6,
Tab 31 at 4-5, 50-51, 80-83; 0200 IAF, Tab 6 at 127-34, 137-38.
7
This activity might have been protected also under 5 U.S.C. § 2302(b)(9)(C) as a
disclosure to an agency component responsible for internal inve stigation or review.
The relevant portion of this provision, however, did not become law until December 12,
2017, postdating all personnel actions at issue in this appeal except for the removal
decision itself. National Defense Authorization Act of 2018, Pub. L. No. 115-91
§ 1097(c)(1), 131 Stat. 1283, 1618 (2017). That provision is not retroactive. Edwards
v. Department of Labor, 2022 MSPB 9, ¶¶ 29-33. In any event, because the appellant’s
March 8, 2017 activity was protected under 5 U.S.C. § 2302(b)(8), we do not reach the
issue of whether it was also protected under 5 U.S.C. § 2302(b)(9)(C).
7
personnel actions. ID at 15-16; see Greenup v. Department of Agriculture,
106 M.S.P.R. 202, ¶ 11 (2007) (finding that contributing factor may be
established by showing that an individual with actual knowledge of the protected
disclosure influenced the personnel action, even if that individual did not
personally affect the action).
¶10 However, based on our review of the hearing recording, we find that the
first-level supervisor did deny that she was aware that the appellant participated
in the internal investigation. She testified that she did not receive a copy of the
investigative report and that she did not know the identity of anyone who
participated in the investigation. HR, Track 5 at 1:37:00, 1:50:40 (testimony of
the appellant’s first-level supervisor). The initial decision makes no mention of
this testimony, and it appears that the administrative judge overlooked it. We
find that the first-level supervisor’s unrebutted, unimpeached testimony, given
under oath and credible on its face, is sufficient to establish that she did not, in
fact, have any knowledge that the appellant engaged in protected activity by
making disclosures to the agency investigator. 8 See Aldridge v. Department of
Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008) (“Sworn statements that are not rebutted
are competent evidence of the matters asserted therein .”); Hatcher v. Office of
Personnel Management, 39 M.S.P.R. 340, 345 n.4 (1988) (finding that the
appellant’s sworn, unrebutted testimony constituted “the only evidence, and
therefore preponderant evidence, of her claim”). Because the appellant did not
8
Even if the first-level supervisor had not denied knowledge of the appellant’s
protected activity, we question whether this alone would have been enough to establish
the contributing factor element. The burden is on the appellant to prove contributing
factor; the burden is not on the agency to disprove it. See McCarthy v. International
Boundary and Water Commission, 116 M.S.P.R. 594, ¶ 39 (2011), aff’d, 497 F. App’x 4
(Fed. Cir. 2012).
The supervisor’s testimony is consistent with the record evidence. She was not among
the individuals copied on the report of investigation, and the investigator stressed in her
report that the report itself should be disclosed on a need -to-know basis and only
higher-level officials should be privy to the witness statements. 0199 IAF, Tab 12 at 4,
7-8.
8
prove that either his first-level supervisor or the deciding official in the removal
had actual or constructive knowledge of his protected disclosure, he failed to
prove that his disclosure was a contributing factor in either the PIP or the removal
under the knowledge/timing test of 5 U.S.C. § 1221(e)(1). See Powers v.
Department of the Navy, 97 M.S.P.R. 554, ¶ 21 (2004).
¶11 Nevertheless, the inquiry does not end there because the knowledge/timing
test is only one way to prove contributing factor. Powers v. Department of the
Navy, 69 M.S.P.R. 150, 156 (1995). We will now consider other evidence, such
as that pertaining to the strength or weakness of the agency’s reasons for taking
the personnel actions, whether the whistleblowing was personally directed at the
officials involved, and whether these individuals had a desire or motive to
retaliate against the appellant. Id.
¶12 As explained in the initial decision, the agency had strong reasons for
placing the appellant on a PIP and subsequently removing him for
performance-based reasons. ID at 23-26. In order for the appellant to have been
minimally successful under critical element 1, “Sustainably Manag[ing] Energy,
Water, and Natural Resources,” he would have had to complete the expected
quantity of work through the specified stage throughout the fiscal year at least
51% of the time. 0199 IAF, Tab 9 at 61-63. However, at the time his supervisor
placed him on the PIP, 9 months into the 2017 performance year, his timely
completion rate was 0%. 0199 IAF, Tab 8 at 15, Tab 10 at 73-79. The
appellant’s timely completion rate during the 90-day PIP period was only 10%,
for an aggregate timely completion rate of 3.9% for the 2017 performance year.
0199 IAF, Tab 8 at 15-16. We find that under these circumstances, whereby the
appellant failed to achieve minimally successful performance in a critical element
9
by such a wide margin, the agency’s evidence in support of its actions was
strong. 9
¶13 The appellant disputes these findings on review, arguing that he routinely
received “superior” performance evaluations under previous supervisors, his
supervisor in performance year 2017 failed to consider his collateral duties at the
Diversity and Inclusion Leadership Council (DILC) under critical element 1 as
his previous supervisor had done, his performance was similar to that of
coworkers who were not placed on a PIP, and it was impossible for him to timely
complete some of his work, both because of its nature and because of his
supervisor’s active obstruction. PFR File, Tab 3 at 6-9. We have considered
these arguments, but we find them unpersuasive. We find that the appellant’s
performance in prior years is not particularly probative of his performance during
the time period at issue. Nor are we persuaded by the appellant’s argument that
his DILC duties should have been considered under critical element 1. Critical
element 1 is based on a numerical standard for timely co mpletion of Auditor
work. 0199 IAF, Tab 9 at 61-63. The appellant has not explained how his DILC
duties should have affected the calculation under that standard . Rather, it appears
on its face that the supervisor’s decision to consider the appellant’s DILC duties
under critical element 4 as support for a special project was more appropriate.
0199 IAF, Tab 9 at 74; HR, Track 5 at 47:40 (testimony of the appellant’s
9
After the initial decision in this case was issued, the United States Court of Appeals
for the Federal Circuit issued Santos v. National Aeronautics and Space Administration,
990 F.3d 1355, 1361-63 (Fed. Cir. 2021), holding that, under 5 U.S.C. chapter 43, the
agency bears the burden of proving that the appellant’s performance was unsatisfactory
not just during the PIP but also during the period leading up to the PIP. In other words,
the agency is required “to justify a challenged post-PIP-based removal by establishing
the propriety of the PIP in the first instance.” Id. at 1361. Likewise, an administrative
judge is required to consider the issue of pre-PIP performance in connection with a
claim that a chapter 43 adverse action was motivated by discrimination or retaliation.
Santos, 990 F.3d at 1362; Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶ 31 n.8. We find that the initial decision in this appeal satisfies that requirement.
ID at 23-25.
10
first-level supervisor). Furthermore, although it may be true that the appellant,
like two of his coworkers, completed only one compliance review during the
relevant time period for which the subject company paid royalties , PFR File,
Tab 1 at 7-8; 0199 IAF, Tab 31 at 63, there is no evidence of what, if any, bearing
this might have had on the objective numerical calculation under critical
element 1 for these two coworkers. Finally, even taking as true the appellant’s
explanations of why he was unable to complete certain portions of his
assignments, we are unable to conclude that his performance in critical element 1
would have been minimally successful even in the absence of these difficulties.
PFR File, Tab 1 at 8-9.
¶14 Regarding retaliatory motive, there is no indication that the appellant’s
disclosures during the investigation had any adverse consequences for either his
first-level supervisor or the deciding official. 10 See Runstrom v. Department of
Veterans Affairs, 123 M.S.P.R. 169, ¶ 17 (2016). Although the appellant’s
first-level supervisor would naturally have had some retaliatory motive to the
extent that the appellant accused her of wrongdoing, PFR File, Tab 12 at 10-12;
Runstrom, 123 M.S.P.R. 169, ¶ 17, again, there is no indication that the first-level
supervisor or the deciding official were aware of the appellant’s participation in
the investigation, much less what he said during it. The appellant’s arguments on
petition for review focus on his first-level supervisor’s retaliatory motive for his
grievance, his EEO complaints, and unspecified “lawsuits.” PFR File, Tab 1 at 9.
However, as explained above, the only protected activity at issue in this appeal is
the appellant’s participation in the internal investigation. Supra ¶¶ 5-8.
Considering all of the relevant evidence, we find that any retaliatory motive on
the part of the officials involved in the PIP and the removal was slight at best,
10
The report of investigation identified the appellant as one of the main sources of
strife in the office. 0199 IAF, Tab 12 at 7-8. The investigator did recommend
additional training for the appellant’s first-level supervisor, but it appears that this was
chiefly because of her troubles in handling some of the “difficult people” under her
supervision. Id. at 12.
11
and we conclude that the appellant has not established that his protected activity
was a contributing factor in either his PIP or his removal. See Powers,
97 M.S.P.R. 554, ¶ 22.
¶15 Where, as here, the appellant in an IRA appeal has failed to prove his case
in chief, the inquiry stops there. The Board may not proceed to adjudicate the
agency’s affirmative defense. Scoggins, 123 M.S.P.R. 592, ¶ 28. We therefore
vacate the administrative judge’s findings with respect to this issue. ID at 16-26;
see Scoggins, 123 M.S.P.R. 592, ¶ 28. Because the appellant’s petition for review
pertains solely to this issue, the arguments therein are immaterial to the outcome
of the appeal, and there is no basis to grant the petition. See 5 C.F.R. § 1201.115.
NOTICE OF APPEAL RIGHTS 11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
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 an d
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.
11
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.
12
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 partic ular
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
13
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:
14
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 2 302(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. 12 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).
12
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 judic ial 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. P ub. L. No. 115-195,
132 Stat. 1510.
15
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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.