Opinion

Sonya Giddings v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Dec 6, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SONYA GIDDINGS, DOCKET NUMBER

Appellant, PH-1221-16-0474-W-1

SOCIAL SECURITY DATE: December 6, 2023

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sonya Giddings , Philadelphia, Pennsylvania, pro se.

Edward C. Tompsett , Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied her request for corrective action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 by this Final Order to clarify the basis of the Board’s jurisdiction and

to find that the administrative judge erred in reaching the issue of whether the

agency proved by clear and convincing evidence that it would not have selected

the appellant absent her protected activity, we AFFIRM the initial decision.

BACKGROUND

¶2 In March 2016, the appellant applied for a Claims Representative position

under vacancy announcement number (VAN) SN-1640477 for positions being

filled in three agency offices in New Jersey: Cherry Hill, Mount Holly, and

Trenton. VAN SN-1640477 accepted applicants from any United States citizen,

including non-agency employees, such as the appellant. Initial Appeal File (IAF),

Tabs 23, 26. The appellant was not selected for a position in any of the offices.

IAF, Tabs 23, 26. On May 23, 2016, the appellant filed a complaint with the

Office of Special Counsel (OSC) alleging that the agency did not select her for

the positions in retaliation for a complaint that she filed with OSC on August 2,

2014, and for an individual right of action (IRA) appeal, Giddings v. Social

Security Administration, MSPB Docket No. PH-1221-15-0302-W-1, which she

filed with the Board on April 13, 2015. IAF, Tab 1 at 13-27. After her complaint

had been pending with OSC for more than 120 days, she filed the instant IRA

appeal with the Board. Id. at 1. She did not request a hearing. Id. at 4.

¶3 Based on the written record, the administrative judge found that the

appellant established jurisdiction over her appeal. IAF, Tab 47, Initial Decision

(ID) at 1-2. The administrative judge also found that the appellant established

that she engaged in protected activity under 5 U.S.C. § 2302(b)(9) that may form

the basis of an IRA appeal. ID at 10. However, he found that the appellant failed

to show by preponderant evidence that her protected activity was a contributing

factor to her nonselection for any of the Claims Representative positions because

the selecting officials did not know of her protected activity. ID at 11 -13. He

also found that the agency established by clear and convincing evidence that it

would not have selected the appellant absent the protected activity. ID at 14-19.

The administrative judge denied the appellant’s request for corrective action. ID

at 19.

¶4 In her petition for review, the appellant alleges that one of the selectees for

the Claims Representative position in Trenton was not best qualified and should

not have been selected over the appellant. Petition for Review (PFR) File, Tab 1

at 4. She also contends that, in finding that she did not prove that her protected

activity was a contributing factor in the nonselections, the administrative judge

erred in failing to consider the “cat’s paw” theory, i.e., that the selecting officials

had constructive knowledge of the appellant’s protected activity. Id. at 5-9.

Additionally, the appellant alleges that the administrative judge was biased. Id.

at 9. After she filed her petition for review, the appellant sought anonymity by

filing a motion for John Doe status for this appeal, her April 13, 2015 IRA appeal,

and another previous IRA appeal, Giddings v. Department of Veterans Affairs,

MSPB Docket No. PH-1221-15-0411-W-1. PFR File, Tab 4. The agency

responded in opposition to the petition for review. PFR File, Tab 3.

ANALYSIS

The appellant’s motion for John Doe status is denied.

¶5 The Board has not adopted a rigid, mechanical test for determining whether

to grant anonymity in cases, but instead applies certain general principles in

making such determinations. Ortiz v. Department of Justice, 103 M.S.P.R. 621,

¶ 10 (2006). Those factors include whether identification creates a risk of

retaliatory physical or mental harm, whether anonymity is necessary to preserve

privacy in a matter of a sensitive and highly personal nature, or whether the

anonymous party is compelled to admit her intention to engage in illegal acts,

thereby risking criminal prosecution. Pinegar v. Federal Election Commission,

105 M.S.P.R. 677, ¶ 10 (2007). The Board also considers whether anonymity is

necessary to prevent a clearly unwarranted invasion of a third party’s privacy or

whether anonymity is necessary to preserve the appellant’s physical safety. Id.

Other potentially relevant factors include whether the appellant requested

anonymity at the beginning of the proceeding before the Board versus

immediately after the need for anonymity became apparent, and which party

placed the sensitive matter in question at issue in the appeal. Id.

¶6 A party seeking anonymity must overcome the presumption that parties’

identities are public information. Id., ¶ 11. Anonymity should be granted to

litigants before the Board only in unusual circumstances, and determining

whether to grant anonymity must depend on the particular facts of each case. Id.

A litigant seeking anonymity before the Board must present evidence establishing

that harm is likely, not merely possible, if her name is disclosed. Even if some

harm is likely, the Board grants anonymity only when the likelihood and extent of

harm to the appellant significantly outweighs the public interest in the disclosure

of the parties’ identities. Id.

¶7 We require parties requesting anonymity to make an actual evidentiary

showing that “harm is likely, not merely possible, if his or her name is disclosed.”

Ortiz, 103 M.S.P.R. 621, ¶ 10. The appellant has offered nothing more than a

bare allegation that her cases being public creates an “unwarranted invasion of

privacy”; she has not explained why “harm is likely,” and she has not offered any

evidence to support her allegation. PFR File, Tab 4 at 4. Thus, we conclude that

she has not rebutted the presumption that parties’ identities are public information

in Board cases, and we deny her motion.

The appellant failed to show that the administrative judge was biased.

¶8 In making a claim of bias or prejudice against an administrative judge, a

party must overcome the presumption of honesty and integrity that accompanies

administrative adjudicators. Smets v. Department of the Navy, 117 M.S.P.R. 164,

¶ 15 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012); Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct

during the course of a Board proceeding warrants a new adjudication only if his

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

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

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)); Smets, 117 M.S.P.R. 164, ¶ 15. The appellant’s allegations on

review, which do not relate to any extrajudicial conduct by the administrative

judge, neither overcome the presumption of honesty and integrity that

accompanies an administrative judge nor establish that he showed a deep-seated

favoritism or antagonism that would make fair judgment impossible.

Accordingly, she has failed to show bias.

The Board has jurisdiction over this appeal.

¶9 Although the administrative judge found that the appellant established

Board jurisdiction over her appeal, ID at 1, he erred in failing to provide any

reasoning for his finding. An initial decision must identify all material issues of

fact and law, summarize the evidence, resolve issues of credibility, and include

the administrative judge’s conclusions of law and his legal reasoning, as well as

the authorities on which that reasoning rests. Spithaler v. Office of Personnel

Management, 1 M.S.P.R. 587, 589 (1980). Because the record is complete, we

have considered whether the Board has jurisdiction over this appeal.

¶10 The Board has jurisdiction over an IRA appeal if the appellant establishes

by preponderant evidence that she exhausted her administrative remedies before

OSC and makes nonfrivolous allegations that (1) she made a disclosure described

under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected

activity was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3),

1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.

Cir. 2001); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). Here,

the appellant exhausted her administrative remedies with OSC concerning her

allegations that she was not selected for various Claims Representative positions

in retaliation for her August 2, 2014 OSC complaint and April 13, 2015 IRA

appeal. 2 IAF, Tab 1 at 17-18. In addition, she made a nonfrivolous allegation

that her August 2, 2014 OSC complaint, in which she alleged that her supervisor

violated 5 U.S.C. § 2302(b)(4) by providing a false reference, constitutes

protected activity under 5 U.S.C. § 2302(b)(9)(C). That section provides that an

employee engages in protected activity when she cooperates with or discloses

information to OSC in accordance with applicable provisions of law. See

5 U.S.C. § 1214 (authorizing OSC to receive and investigate allegations of

prohibited personnel practices). 3

To the extent the appellant alleges retaliation in connection with vacancies that were

filled after she filed her May 23, 2016 OSC complaint, IAF, Tab 1 at 12, she has not

shown that she exhausted her administrative procedures with OSC regarding those

nonselections. Thus, the Board does not have jurisdiction to address whether those

nonselections were retaliatory. See Linder, 122 M.S.P.R. 14, ¶ 6.

The appellant’s April 13, 2015 IRA appeal, in which she also alleged retaliation for

filing her August 2, 2014 OSC complaint, appears to constitute protected activity under

5 U.S.C. § 2302(b)(9)(A)(ii), which covers “the exercise of any appeal, complaint, or

grievance right granted by any law, rule, or regulation . . . other than with regard to

remedying a violation of paragraph (8).” Because the Board has not been granted

¶11 We further find that the appellant nonfrivolously alleged that this protected

activity was a contributing factor in a personnel action taken against her. One

way to establish the contributing factor criterion is through the knowledge/timing

test, under which an employee may nonfrivolously allege that the protected

activity was a contributing factor in a personnel action through circumstantial

evidence, such as evidence that the official taking the personnel action knew of

the protected activity and that the personnel action occurred within a period of

time such that a reasonable person could conclude that the protected activity was

a contributing factor in the personnel action. See Mudd v. Department of

Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013). Here, the appellant alleges that

many of the agency employees involved in the selections for the Claims

Representative positions were aware of her protected activity because they gave

statements in her April 13, 2015 Board appeal, in which her August 2, 2014

complaint to OSC was an issue, and thus, they knew of her protected activity.

IAF, Tab 13 at 4-5. We therefore find that the appellant made a nonfrivolous

allegation satisfying the knowledge prong of the knowledge/timing test.

Regarding the timing prong of the knowledge/timing test, the nonselections at

issue occurred by May 23, 2016, within 22 months after the appellant filed her

August 2, 2014 OSC complaint, and the Board has held that a personnel action

that occurs within 2 years of the appellant’s protected activity satisfies the timing

prong of the knowledge/timing test. See Agoranos v. Department of Justice,

119 M.S.P.R. 498, ¶ 23 (2013).

¶12 Finally, we find that the appellant made a nonfrivolous allegation that the

agency failed to take a personnel action as defined by 5 U.S.C. § 2302(a) by not

selecting her for a Claims Representative position. A nonselection is a “personnel

appeal jurisdiction over allegations of retaliation for activity protected under

§ 2302(b)(9)(A)(ii), our jurisdiction over this appeal does not extend to the appellant’s

allegation that the agency did not select her for the Claims Representative positions in

retaliation for her April 13, 2015 appeal. See Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶ 7 (2013).

action” for purposes of the Whistleblower Protection Act. 5 U.S.C.

§ 2302(a)(2)(A); Reeves v. Department of the Army, 99 M.S.P.R. 153, ¶ 15

(2005); Embree v. Department of the Treasury, 70 M.S.P.R. 79, 86 (1996); see

also Greenspan v. Department of Veterans Affairs , 94 M.S.P.R. 247, ¶ 14 (2003)

(finding that when the appellant makes a nonfrivolous allegation that at least one

alleged personnel action was taken in retaliation for at least one alleged protected

disclosure, he establishes the Board’s jurisdiction over his IRA appeal), rev’d on

other grounds, 464 F.3d 1297 (Fed. Cir. 2006). Accordingly, we find that the

appellant established jurisdiction over this IRA appeal. See Linder, 122 M.S.P.R.

14, ¶ 6.

The appellant failed to establish a prima facie case of retaliation for protected

activity.

¶13 After establishing the Board’s jurisdiction in an IRA appeal, the appellant

then must establish a prima facie case of retaliation by proving by preponderant

evidence that she made a protected disclosure or engaged in protected activity

that was a contributing factor in a personnel action taken against her. 5 U.S.C.

§ 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If

the appellant meets that burden, then the Board shall order such corrective action

as it considers appropriate unless the agency shows by clear and convincing

evidence that it would have taken the same personnel action absent the protected

disclosure or activity. 5 U.S.C. § 1221(e)(1)–(2); Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 12 (2011).

¶14 In early 2016, the agency approved the hiring of Claims Representatives in

Cherry Hill, Mount Holly, and Trenton. IAF, Tab 23 at 25. To fill the open

positions, the agency posted two different vacancy announcements. Id. First, the

agency internally posted VAN SN-1634926, which accepted applications from

current agency employees only. Id. at 26. This vacancy announcement was open

from February 24 through March 16, 2016. Id. The agency also posted a vacancy

announcement for the Claims Representative position under VAN SN-1640477.

Id. This vacancy announcement was open from March 1 through March 2, 2016.

Id. As noted, the appellant applied only under VAN SN-1640477.

¶15 The district managers throughout New Jersey were given a certain number

of Claims Representative positions to fill in their respective field offices based on

factors such as staffing needs, the loss of any employees, and available space for

new employees. Id. The Deputy Area Director, who had authority to approve the

district managers’ selections, explained that, in selecting applicants for the

Claims Representative positions, the district manager of each field office was first

to consider only internal applicants who applied under VAN SN-1634926. Id. If

there were remaining vacancies in the field offices after the district managers

selected from the list of internal applicants, the district managers would then

consider the eligible external applicants under VAN SN-1640477. Id. However,

veteran applicants for the Claims Representative position under the external

vacancy announcement were considered before any nonveterans. Id.

Consequently, the district managers interviewed each veteran to assess the

veteran’s ability to “meet and deal” with the public based on the applicant’s

responses to situational questions. Id. If a veteran “passed” the interview, the

veteran could be selected for an open position that still existed after hiring

occurred from the internal vacancy announcement. Id. at 27. After completing

the veteran interviews, all field office managers conducted “meet and deal”

interviews of the eligible nonveteran applicants, including the appellant, under

the external vacancy. Id. The appellant presented no evidence or argument to

dispute that Claims Representative positions were filled in the manner as set out

by the agency in its submissions.

¶16 The Cherry Hill office had three vacancies. Id. at 28. The District Manager

of the Cherry Hill office selected two applicants from the internal vacancy VAN.

Id. at 37-40. As noted, the appellant did not apply under this vacancy

announcement, and, under the circumstances presented here—wherein she failed

to rebut the agency’s evidence that district managers must first select from

internal candidates to fill Claims Representative positions—any selections under

that announcement could not be considered nonselections of the appellant. Thus,

we find that the appellant failed to establish by preponderant evidence that the

Cherry Hill District Manager took a personnel action as defined by 5 U.S.C.

§ 2302(a) regarding the appellant under VAN SN-1634926.

¶17 The Cherry Hill District Manager also made a selection under VAN

SN-1640477. Id. She selected a veteran, pursuant to the selection sequence

prescribed by higher agency managers. Notwithstanding the selection sequence,

because the Cherry Hill District Manager made a selection under VAN

SN-1640477, and did not select the appellant, she established by preponderant

evidence that one nonselection under VAN SN-1640477 for a Claims

Representative position in the agency’s Cherry Hill office was a personnel action

taken against her under § 2302(a). However, the District Manager of the Cherry

Hill office declared under penalty of perjury that she “was unaware of [the

appellant’s] Office of Special Counsel complaints concerning her former

supervisor or her prior Merit Systems Protection Board (MSPB) appeal.” IAF,

Tab 23 at 40. The appellant presented no evidence or argument to rebut this

declaration, and thus, she failed to prove by preponderant evidence under the

knowledge prong of the knowledge/timing test that her protected activity was a

contributing factor to her nonselection for a Claims Representative position in the

Cherry Hill Office.

¶18 The Mount Holly office had two vacancies. Id. at 34-36. The District

Manager filled both of these vacancies from internal candidates. Id. As with the

internal selections made by the Cherry Hill District Manager, we find that the

appellant failed to establish by preponderant evidence that the Mount Holly

District Manager took a personnel action as defined by 5 U.S.C. § 2302(a)

regarding the appellant under VAN SN-1634926.

¶19 The Trenton office had three vacancies. Id. at 30-33. The District Manager

made all of his selections from VAN SN-1640477, two veterans and one

nonveteran. Id. He did not select the appellant. Therefore, the appellant

established by preponderant evidence that her nonselections for the Trenton office

were personnel actions under § 2302(a). However, the District Manager of the

Trenton office declared under penalty of perjury that when “selecting applicants

to the Claims Representative position, I was unaware of Appellant’s complaint

concerning her former supervisor, any Office of Special Counsel complaint, or

Appellant’s prior Merit Systems Protection Board (MSPB) appeal.” Id. at 32. As

explained more fully below, the appellant did not rebut this declaration, and thus,

she failed to prove by preponderant evidence under the knowledge prong of the

knowledge/timing test that her protected activity was a contributing factor to her

nonselection for a Claims Representative position in the Trenton office.

¶20 As the appellant argues on review, the administrative judge did not use the

phrase “cat’s paw” theory in his finding that the appellant failed to show that the

Trenton District Manager’s not selecting her for the Claims Representative

position was influenced by other agency employees who knew of the appellant’s

protected activity. PFR File, Tab 1 at 5-9. The Supreme Court has adopted the

term “cat’s paw” to describe a case in which a particular management official,

acting because of an improper animus, influences another agency official who is

unaware of the improper animus when implementing a personnel action.

Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 11 (2012) (citing Staub v.

Proctor Hospital, 562 U.S. 411 (2011)). Under the cat’s paw theory, an appellant

can establish that a prohibited animus toward a whistleblower was a contributing

factor in a personnel action by showing by preponderant evidence that an

individual with knowledge of the protected disclosure influenced the officials

who are accused of taking the personnel actions. Aquino v. Department of

Homeland Security, 121 M.S.P.R. 35, ¶ 23 (2014). Here, although the

administrative judge did not use the term “cat’s paw,” he carefully considered

whether the employees who knew of the appellant’s protected activity influenced

the Trenton District Manager’s decision to not select the appellant, and he

properly found that the appellant failed to show that they had done so. ID

at 12-13. Thus, we find that appellant’s argument that the Trenton District

Manager was aware of her OSC complaint under “cat’s paw” theory is unavailing.

¶21 Because the appellant failed to show by preponderant evidence that her

nonselection for two positions in the Cherry Hill office under VAN SN-1634926

and two positions in the Mount Holly office under VAN SN-1634926 were

personnel actions, she failed to meet her burden to prove a prima facie case of

retaliation regarding those nonselections. Further, because the appellant failed to

demonstrate by preponderant evidence that the district managers who made the

selections from VAN SN-1640477 knew of her protected activity, she failed to

show by preponderant evidence that her protected activity was a contributing

factor to those nonselections, and thus failed to prove her prima facie case of

retaliation for those nonselections. See Iyer v. Department of the Treasury,

95 M.S.P.R. 239, ¶ 9 (2003), aff’d, 104 F. App’x 159 (Fed. Cir. 2004).

Accordingly, we find that the administrative judge properly denied the appellant’s

request for corrective action. Id., ¶ 10.

¶22 Despite the appellant’s failure to establish a prima face case of retaliation,

the administrative judge proceeded to make findings on whether the agency had

proved by clear and convincing evidence that it would not have selected the

appellant for the Claims Representative position despite her protected activity.

ID at 14-19. An administrative judge only reaches the agency’s burden to prove

that it would have taken the same action absent the appellant’s protected activity

after the appellant has met her burden to establish a prima facie case. See

Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 13 (2016). Given his

correct finding that the appellant failed to prove her prima facie case, it was

inappropriate for the administrative judge to determine whether the agency proved

by clear and convincing evidence that it would have taken the same action absent

the appellant’s whistleblowing. See Clarke v. Department of Veterans Affairs,

121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the

clear and convincing evidence test unless it has first determined that the appellant

established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).

Accordingly, we vacate the administrative judge’s findings that the agency proved

by clear and convincing evidence that it would not have selected the appellant for

the Claims Representative position absent her whistleblowing.

The appellant’s allegation that she was better qualified than the selectee for the

Claims Representative position in Trenton is beyond the scope of this appeal.

¶23 In an IRA appeal, the Board lacks the authority to adjudicate the merits of

the underlying personnel action; rather, our jurisdiction is limited to adjudicating

the whistleblower allegations. See Marren v. Department of Justice, 51 M.S.P.R.

632, 639 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on

other grounds by Robinson v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13

(1994). Thus, we do not have jurisdiction to make findings on the appellant’s

assertion that she should have been selected for the Claims Representative

position in the agency’s Trenton office because she was better qualified than the

selectee.

NOTICE OF APPEAL RIGHTS 4

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

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.

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

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

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

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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. 5 The court of appeals must receive your petition for

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.

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

§ 7703(b)(1)(B).

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

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