Opinion

Angelica Guerra v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Feb 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

holding that ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice

How later courts described this case

holding that ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGELICA GUERRA, DOCKET NUMBER

Appellant, DA-0752-17-0013-I-1

DEPARTMENT OF HOMELAND DATE: February 8, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carlos E. Paredes , New Caney, Texas, for the appellant.

Jennifer Cook , Esquire, Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed her removal for her inability to perform the essential duties of her

position. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to

apply the correct legal standard to the agency’s charge of inability to perform the

essential duties of her position, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed as a Customs and Border Patrol Officer

(CBPO) with the U.S. Customs and Border Protection Office of Field Operations,

Houston Field Operations, Port of Houston Airport. Initial Appeal File (IAF),

Tab 4 at 22. A CBPO is a law enforcement position, and the incumbent is

therefore required to carry a Government-issued firearm. Id. at 85. Because the

position requires an officer to carry a firearm, it also has medical requirements

which state, in part:

The officer must exercise sound judgment, maintain mental alertness

at all times, and function under dynamic and stressful conditions in

which there are time constraints, concerns for national security, and

threats of terrorism.…

The standard requires that the person be medically and physically

capable of performing the essential functions and duties of the

position safely and efficiently without aggravating existing health

problems or endangering the health and safety of the individual,

others, or national security. The individual must be free of any

organic, structural or fundamental impairment(s) or existing health

problem(s) that would be aggravated in response to the work

environment and/or would affect safe and efficient job performance.

IAF, Tab 5 at 4.

In December 2014, the appellant self-reported to the agency that she

threatened to kill her son’s dog, later explaining that she meant that she would

have the dog euthanized, but that her son would not understand that term. IAF,

Tab 13 at 42. After a telephone call from her son to the appellant’s ex -husband,

law enforcement was dispatched to the appellant’s home where she was detained

for a short period before being released. Id. Two months later, in February 2015,

the appellant called her first-line supervisor and told him that she needed to talk

and that she was located in the breakroom. IAF, Tab 4 at 75. When the

supervisor arrived at the breakroom, the appellant “was laying on the couch with

her hair in disarray,” and when the supervisor directed her to “sit up and fix

herself,” the appellant responded that she had texted her ex-husband that she

wished he would die, or words to that effect. Id. The supervisor then escorted

the appellant to the supervisory CBPO’s office, who was there with the Watch

Commander, and upon arriving, the appellant started crying and stated that “she

was dying” because her son now lives with her ex-husband. Id.

Initially, the agency referred the appellant to the Customs and Border

Patrol (CBP) Employee Assistance Program (EAP), IAF, Tab 13 at 58, but on

March 11, 2015, the Port Director issued the appellant a letter directing her to

undergo a fitness-for-duty (FFD) examination to determine her capacity to

perform her duties as a CBPO, IAF, Tab 4 at 87-89. In the letter, the Port

Director informed the appellant of the basis for the exam, explaining that her

indications to her supervisors concerning her struggles with, among other things,

depression, major financial issues, and heavy drinking, raised questions in his

mind regarding her continued capacity to perform the full range of her duties in a

safe and effective manner. Id. at 87.

The appellant underwent the FFD exam, but the results were inconclusive

as to whether there was a medical explanation for her behavior and she was

directed to undergo a mental health examination with Dr. L.N., a licensed

forensic psychiatrist. IAF, Tab 5 at 30-31. After the appellant’s psychiatric

independent medical examination (IME), Dr. L.N. concluded that the appellant

could not safely, efficiently, or reliably perform all of the duties of her position

without restrictions, and he stated that she should not carry a Government-issued

firearm because of her current alcohol use disorder and depressive and anxious

symptoms. IAF, Tab 6 at 21. After Dr. L.N. produced his report, the appellant

sought an independent evaluation with her own physician, Dr. K.S., who

concluded that the appellant was not suffering from an acute mental illness at that

time that would impair her ability to work in law enforcement and that she was

not an imminent danger to herself or others. IAF, Tab 5 at 47. Several months

later, the agency and the appellant engaged in an interactive reasonable

accommodation process, and the agency made a tentative reassignment offer,

which the appellant declined. Id. at 49-54; IAF, Tab 6 at 4.

On July 26, 2016, the agency proposed the appellant’s removal based on

the charge of “Inability to Perform the Essential Duties” of a CBPO. IAF, Tab 4

at 31-36. The proposal notice relied on the initial report from Dr. L.N. and an

addendum report issued 3 months later. Id. at 32; IAF, Tab 6 at 10-23, 74-76.

Based upon Dr. L.N.’s conclusion that the appellant should not carry a

Government-issued firearm and the fact that the appellant’s job description

required that she carry one, the agency asserted in the proposal notice that the

appellant was not fit for duty. IAF, Tab 4 at 31-36. On September 14, 2016, the

deciding official issued a final decision upholding the proposed removal. Id.

at 23-30. In the decision notice, he found that the appellant was unable to

perform the duties of a CBPO and that, due to her medical conditions, her

inability to perform the essential functions of a CBPO, and her declining the

reassignment offer, there was no adequate remedy available other than removing

her from Federal service. Id. at 28.

The appellant appealed the agency’s decision to the Board, claiming that

the agency failed to establish that she was disqualified from performing the duties

of a CBPO and that the agency committed harmful errors when it forced her to

undergo an FFD examination and an IME evaluation. IAF, Tab 1 at 5. She also

claimed that the agency discriminated against her based upon a perceived

disability. IAF, Tab 8 at 4-6.

After holding a hearing, the administrative judge issued an initial decision

sustaining the appellant’s removal. IAF, Tab 18, Initial Decision (ID). He found

that, considering the evidence as a whole, the agency proved that the appellant

suffered from several medical conditions that precluded her from being able to

carry a firearm, which is an essential duty of a CBPO. ID at 10. Thus, the

administrative judge found that the appellant’s medical condition was

disqualifying. Id. He further found that the recurrence of the appellant’s medical

condition could not be ruled out and that her former position’s duties are such

that a recurrence would pose a reasonable probability of substantial harm. ID

at 11. The administrative judge also found that the appellant failed to prove any

of her affirmative defenses, including her disability discrimination claim 2 and that

The appellant does not argue on review that the administrative judge erred in finding

that she failed to prove her disability discrimination defense. PFR File, Tab 1 at 6-11;

ID at 12-15. We note that, in analyzing that claim, the administrative judge used the

analytical framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612,

¶ 51 (2015) and Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 21 (2013).

ID at 12-15. Following the issuance of the initial decision, the Board issued Pridgen v.

Office of Management and Budget, 2022 MSPB 31, which overruled parts of Savage and

Southerland, and clarified the proper analytical framework to be applied to affirmative

defenses of discrimination and retaliation. Specifically, the Board explained that for

status-based disability discrimination claims, an appellant is entitled to some relief, i.e.,

injunctive relief, if she satisfies the motivating factor standard, but in order to obtain

full relief, she must show that disability discrimination was a but-for cause of the

the selected penalty of removal was reasonable and promoted the efficiency of the

service. ID at 12-19.

The appellant has filed a petition for review arguing that the agency failed

to establish that her removal promotes the efficiency of the service, and that it

violated her due process and Fourth Amendment rights. 3 Petition for Review

(PFR) File, Tab 1 at 6-11. The agency has filed a response to the appellant’s

petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

In the initial decision, the administrative judge stated that, to prove its

charge of physical inability to perform, the agency was required to show the

following: (1) the appellant’s disabling condition itself was disqualifying; (2) its

recurrence could not be ruled out; and (3) the duties of the appellant’s position

were such that a recurrence would pose a reasonable probability of substantial

harm. 4 ID at 4. Following the issuance of the initial decision, however, the

Board determined that this standard applies only when an employee who occupies

a position with medical standards is removed based solely on medical history,

personnel action. Pridgen, 2022 MSPB 31, ¶¶ 40, 42. However, because we agree with

the administrative judge that the appellant provided no evidence, absent conclusory

assertions, that her removal was motivated by disability discrimination, ID at 15, there

is no basis to reverse the administrative judge’s findings. Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is

not prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision).

The appellant does not appear to challenge the administrative judge’s finding

regarding her harmful procedural error defense. PFR File, Tab 1 at 6-11; ID at 15-18.

We have reviewed the record, and we find no reason to disturb that finding here.

Although not cited by the administrative judge, this is a recitation of the standard set

forth in 5 C.F.R. § 339.206. Subsequent to the appellant’s removal, the Office of

Personnel Management amended 5 C.F.R. § 339.206 as to the degree of risk required.

Medical Qualification Determinations, 82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18,

2017) (Final Rule). However, given our findings herein, this amendment is not material

to the outcome of this appeal; thus, we need not address whether the regulatory changes

apply retroactively. See Haas v. Department of Homeland Security , 2022 MSPB 36,

¶ 11 n.2.

i.e., when the only basis for concluding that the employee was medically unable

to perform the core duties of her position was the fact that her medical records

reflected that, at some time in the past, she was classified as having, was

examined for, or was treated for the medical condition or impairment in question.

Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 10-15. The Board

explained that in cases, as here, involving a current medical condition, the agency

must prove either a nexus between the employee’s medical condition and

observed deficiencies in her performance or conduct, or a high probability, given

the nature of the work involved, that her condition may result in injury to herself

or others. Id., ¶ 15. The Board has otherwise described this standard as requiring

that the agency establish that the appellant’s medical condition prevents her from

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

Here, although the administrative judge both enumerated and applied the

standard set forth in 5 C.F.R. § 339.206, remand is unnecessary because the

record is fully developed on the relevant issues. See id., ¶ 20. As discussed

below, while we modify the initial decision to apply the correct legal standard, we

find that, because the agency established that the appellant’s current medical

condition prevented her from being able to safely and efficiently perform the core

duties of her position, the agency proved its charge, and therefore, we ultimately

affirm the removal action.

The agency established a nexus between the appellant’s current medical condition

and observed deficiencies in her performance or conduct, or a high probability,

given the nature of the work involved, that her condition may result in injury to

herself or others.

In finding that the agency established that the appellant was unable to

perform her essential duties, the administrative judge thoroughly considered the

medical evidence presented by both the agency and the appellant. First, he

reviewed the testimony from, among others, Dr. L.N., who, he noted, was Board

certified in forensic and addictive psychiatry. ID at 5-8. Dr. L.N. testified that

the appellant suffered from alcohol dependency, an adjustment disorder

(anxiety/depression), and a sleep disorder. Hearing Compact Disc (HCD)

(testimony of Dr. L.N.). He also testified that the appellant’s alcohol use

rendered her incapable of working any hours at her current position because

alcohol use disorder causes increased impulsivity and impaired executive

cognitive function. Id. The administrative judge found that Dr. L.N. credibly

testified that sound judgment and the ability to react quickly to complex and

difficult situations are required skills for an individual to safely carry a firearm.

ID at 6. Based on this assessment, Dr. L.N. testified that the appellant could not

safely carry a Government-issued firearm. HCD (testimony of Dr. L.N.).

Dr. L.N. also believed that the appellant could rehabilitate herself through an

intensive treatment program, but that there is no evidence that she sought such

treatment. ID at 11. He further testified that, even if the appellant participated in

an intensive treatment program, relapse was still very likely. 5 ID at 11.

The administrative judge also considered the appellant’s medical evidence,

which included an evaluation performed by Dr. K.S., who did not testify at the

hearing. ID at 6. The administrative judge discussed Dr. K.S.’s evaluation of the

appellant, which concluded that the appellant suffered from alcohol abuse that

was in remission. ID at 6; IAF, Tab 5 at 47. Dr. K.S. also concluded that the

appellant had met the criteria for major depressive disorder and alcohol abuse in

the past, but she no longer did. Id. She recommended that the appellant see a

The appellant argues on review that the agency failed to meet its burden because

Dr. L.N.’s findings conclude that a drinking problem and serious substance abuse are

“likely,” which is a level of probability discouraged by the agency policy, which

appears to require a firmer diagnosis. PFR File, Tab 1 at 9; IAF, Tab 13 at 104. First,

we clarify that the comments were made by a licensed clinical psychologist, R.F.,

Ph.D., rather than by Dr. L.N., after he administered a specific examination on the

appellant. IAF, Tab 6 at 78-79. Second, even if we assume, arguendo, that the agency

erred in the application of its own policy, we would find that such an error does not

require reversing the initial decision. See Powers v. Department of the Treasury,

86 M.S.P.R. 256, ¶ 10 (2000) (stating that for a procedural error to warrant reversing an

agency action, the appellant must establish that the agency committed a procedural error

that likely had a harmful effect on the outcome of the case before the agency). Even in

the absence of this evidence, the outcome of the appeal would be the same.

therapist and that she follow up with a psychiatrist as needed. Id. Dr. K.S.

ultimately concluded that the appellant was not suffering from an acute mental

illness that would impair her ability to work in law enforcement or with the

agency and that she was not an imminent danger to herself or others. Id.

The administrative judge determined that Dr. L.N.’s conclusions were more

probative than the medical evidence provided by the appellant. ID at 7. We

discern no basis to disturb this finding. 6 In assessing the probative weight of

medical opinions, the Board considers whether the opinion was based on a

medical examination and whether it provided a reasoned explanation for its

findings as distinct from mere conclusory assertions; the qualifications of the

expert rendering the opinion; and the extent and duration of the expert’s

familiarity with the appellant’s treatment. Adams v. U.S. Postal Service,

108 M.S.P.R. 250, ¶ 13 (2008), aff’d, 309 F. App’x 413 (Fed. Cir. 2009). The

administrative judge reasoned that Dr. L.N.’s conclusions were based on a

comprehensive evaluation that included several self-reported inventories, a

3-hour interview with the appellant, the medical results from the appellant’s FFD

examination, and the position description for a CBPO. ID at 7. In considering

Dr. K.S.’s evaluation, the administrative judge noted that it was based upon a less

thorough analysis, as there was no indication that she took a history of the

appellant’s addiction and did not document whether the appellant had

implemented successful treatment methods and coping strategies. ID at 6-7, 9-10.

The administrative judge also stated that there was no indication that Dr. K.S. had

any expertise in evaluating law enforcement officers or whether she reviewed the

position description for a CBPO before reaching her conclusion. ID at 9.

The appellant argues on review that there is no evidence that she received anything

less than satisfactory performance ratings, suggesting that she was able to perform the

essential duties of a CBPO contrary to the agency’s charge. PFR File, Tab 1 at 6. We

find the appellant’s performance ratings to be irrelevant because her performance was

not germane to the charge brought by the agency; rather, the charge focused on her

inability to carry a firearm, which is one of her job’s requirements. IAF, Tab 4

at 31-36, 85.

Therefore, based on the foregoing, we find that the agency proved that the

appellant was unable to safely and efficiently perform the core duties of her

position. The record reflects that at the time of her removal, the appellant was

suffering from alcohol dependency, and exhibiting anxious and depressive

symptoms, which impaired her judgment, reflexes, and concentration, thus

preventing her from safely carrying a firearm. IAF, Tab 6 at 21-22. Furthermore,

the appellant’s medical conditions resulted in observed deficiencies in her

conduct, as she threatened to kill her son’s dog, told her former husband that she

wished he would die, and had a disturbing episode while on duty, which included

lying on the breakroom couch with her hair in disarray, crying, and stating to

upper management that she was dying. IAF, Tab 4 at 75, Tab 13 at 42. While we

sympathize with the appellant’s situation, such behavior is nonetheless

concerning for an employee that is entrusted with the safety of the public, and in

this role, is required to carry a Government-issued firearm. Thus, considering the

evidence in the record, we find that the agency established a nexus between the

appellant’s medical conditions and a deficiency in her conduct, or at least, a high

probability, given the nature of the work involved, that her condition may result

in injury to herself or others. Accordingly, we find that the agency proved its

charge of inability to perform the essential duties of her position.

The agency did not violate the appellant’s due process rights.

On review, the appellant also argues that the agency violated her due

process rights because it relied on aggravating factors to impose the penalty of

removal that were not included in the proposal notice. PFR File, Tab 1 at 6-7.

See Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶¶ 5-13 (2011) (stating

that when an agency intends to rely on aggravating factors as the basis for

imposing a penalty, such factors should be included in the advance notice of

adverse action so that the employee will have a fair opportunity to respond to

those factors before the agency’s deciding official). She also argues that ex parte

communications occurred among agency officials and that those communications

violated her due process rights. Id. at 7-8. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1376-77 (2014) (holding that ex parte

communications that introduce new and material information to the deciding

official will violate the due process guarantee of notice).

The appellant did not argue below that the agency had violated her right to

due process. Moreover, the defense was not included among the issues the

administrative judge identified for adjudication in her Order and Summary of

Telephonic Prehearing Conference, and the appellant did not file an objection to

the exclusion of the due process claim from that list of issues, despite being

afforded an opportunity to do so. IAF, Tab 14. The Board will not consider an

argument raised for the first time in a petition for review absent a showing that it

is based on new and material evidence not previously available despite the party’s

due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980). Here, the appellant contends that, during cross examination by agency

counsel at the hearing she was asked about aggravating factors that the deciding

official had considered in his penalty determination, without prior notice that

these factors would be considered. PFR File, Tab 1 at 6-7. These included her

leave usage, the self-reported incident in which she stated that she wished her

husband would die, an incident in which she threatened to kill the family dog, and

the loss of her credentials. Id. at 7.

Even if the appellant was unaware of the basis for this argument until she

testified at hearing, and if we found it was appropriate to consider the argument

for the first time on review, we would find that it is meritless. The record shows

that the above factors were not considered in the decision to remove the

appellant, but rather in the decision to require her to undergo an FFD

examination. IAF, Tab 4 at 23, 73-76. Furthermore, the traditional analysis for

mitigating the penalty under Douglas v. Veterans Administration, 5 M.S.P.R. 280

(1981), does not apply in this instance because a removal for inability to perform

the essential duties of a CBPO is considered nondisciplinary and such factors do

not apply in that penalty determination. See Chandler v. Department of the

Treasury, 120 M.S.P.R. 163, ¶ 31 (2013) (noting that the Douglas factors do not

apply to a furlough, consistent with the Board’s practice of not applying them to

nondisciplinary matters). Thus, we find that the agency did not violate the

appellant’s due process rights in this regard.

The appellant’s argument that the agency engaged in ex parte

communications when the Port Director spoke with her supervisors about her

situation and she was not notified of these conversations in the proposal notice is

based on a statement by the Port Director in the FFD order. PFR File, Tab 1 at 7

(citing IAF, Tab 4 at 87). This is a new argument that the appellant failed to raise

below, based on evidence that was readily available to her. However, even if we

considered the argument, as explained below, we find it to be without merit.

The due process protections against ex parte communication relate only to

the deciding official and whether he engaged in ex parte communications that

introduce new and material information that is so substantial and so likely to

cause prejudice that it undermines the due process guarantee and entitles the

claimant to an entirely new administrative proceeding. Stone, 179 F.3d

at 1376-77. Here, the appellant has not alleged that the deciding official obtained

any new and material information; rather, she claims that the Port Director, who

was the proposing official and who does not appear to have been involved in

issuing the final decision, had ex parte communications with her supervisors prior

to the issuance of the proposal notice. PFR File, Tab 7-8. Thus, we find that the

agency did not engage in ex parte communications in violation of the appellant’s

due process rights.

The agency did not violate the appellant’s Fourth Amendment rights.

The appellant argues that, when the agency ordered her to undergo an FFD

examination, it also improperly obtained blood and urine samples not authorized

by FFD examination protocol, thereby violating her Fourth Amendment right to

privacy. PFR File, Tab 1 at 11. Again, this is a new argument that the appellant

failed to raise below, and again, even if we considered it, we would find this

argument to be unpersuasive. The U.S. Supreme Court has addressed the

question of the constitutionally protected privacy of a Customs officer and has

stated that Customs officers who are required to carry firearms in the line of duty

have a diminished expectation of privacy over intrusions occasioned by a urine

test. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 (1989).

The Court goes on to explain that:

[b]ecause successful performance of their duties depends uniquely on

their judgment and dexterity, these employees cannot reasonably

expect to keep from [an agency] personal information that bears

directly on their fitness…. While reasonable tests designed to elicit

this information doubtless infringe some privacy expectations, we do

not believe these expectations outweigh the Government’s

compelling interests in safety and in the integrity of our borders.

Id.

Further, even without the U.S. Supreme Court’s discussion of a Customs

officer’s expectation of privacy, the agency’s Fitness for Duty Standard

Operating Procedures manual states that when there is a question about an

employee’s mental health, the employee is required to undergo a medical exam

prior to a psychiatric exam, and that such medical exams will include blood tests.

IAF, Tab 13 at 113. Moreover, the appellant has failed explain how or why any

of the agency’s actions in collecting her blood and urine samples violate 5 C.F.R.

§ 339.301, which grants agencies the authority to conduct medical and psychiatric

examinations. Consequently, we find the appellant’s argument to be meritless.

We have considered the appellant’s other arguments on review, but we

conclude that a different outcome is not warranted. Accordingly, we affirm the

initial decision.

NOTICE OF APPEAL RIGHTS 7

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

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

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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:

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.

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. 8 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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