Opinion

Leah Pittman v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEAH C. PITTMAN, DOCKET NUMBER

Appellant, AT-0752-17-0393-I-3

DEPARTMENT OF VETERANS DATE: March 20, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.

Kimberly Kaye Ward , Esquire, Decatur, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained her removal. 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;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed as a GS-13 Pharmacist at an agency medical

center in Charleston, South Carolina. Pittman v. Department of Veterans Affairs,

MSPB Docket No. AT-0752-17-0393-I-1, Initial Appeal File (IAF), Tab 1 at 4,

Tab 4 at 14. On November 4, 2016, the agency proposed her removal based on

the following charges: (1) delay in patient care (4 specifications); (2) failure to

timely respond to phone calls and/or other contacts (2 specifications);

and (3) failure to timely perform duties (4 specifications). IAF, Tab 4 at 63-66.

By letter dated March 3, 2017, the deciding official sustained the charges and

found that removal was an appropriate penalty. Id. at 31-35.

The appellant filed this appeal of her removal with the Board. IAF, Tab 1.

Following a hearing, the administrative judge issued an initial decision affirming

the removal action. 2 Pittman v. Department of Veterans Affairs, MSPB Docket

No. AT-0752-17-0393-I-3, Appeal File (I-3 AF), Tab 15, Initial Decision (ID).

She found that the agency proved all three charges. ID at 4, 6, 8. The

The administrative judge had previously dismissed the appeal twice without prejudice

to refiling. IAF, Tab 28, Initial Decision; Pittman v. Department of Veterans Affairs,

MSPB Docket No. AT-0752-17-0393-I-2, Appeal File (I-2 AF), Tab 22, Initial

Decision.

administrative judge also found that the appellant did not prove her affirmative

defenses of disability discrimination or violation of her due process rights. 3 ID

at 9, 14. The administrative judge further determined that the agency did not hold

the appellant to a higher performance standard than the standard that would have

been required under chapter 43. ID at 9-10. Finally, the administrative judge

found that the agency’s action promoted the efficiency of the service and that

removal was a reasonable penalty. ID at 14-16.

The appellant timely filed a petition for review, in which she challenges the

administrative judge’s findings that the agency proved its charges and that the

agency-imposed penalty was reasonable. Petition for Review (PFR) File, Tab 1

at 19-23. She also argues that the agency used chapter 75 to circumvent her

chapter 43 performance standards. Id. at 13. In addition, she reasserts her

affirmative defense of disability discrimination based on a failure to

accommodate. Id. at 5-7, 14-19. The agency has responded to the appellant’s

petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved its charges by

preponderant evidence.

On review, the appellant asserts that she was not solely to blame for the

incidents underlying the agency’s charges. PFR File, Tab 1 at 8-9, 19-20.

Specifically, she reasserts her argument that the malfunction of new telephone

equipment, poor organization within the department, and the outsourcing of the

processing of prescriptions were circumstances beyond her control which led to

the delays in performing her duties. Id. at 19-20; I-3 AF, Tab 12 at 18-19.

She does not link these assertions to the individual charges or specifications but

The appellant does not challenge the administrative judge’s finding that she did not

prove a due process violation. Because the appellant does not raise this issue on

review, and because we discern no basis for disturbing the administrative judge’s

determination that the agency did not violate the appellant’s due process rights, we do

not further address this affirmative defense.

generally argues that the agency failed to meet its burden because it could not

prove she was specifically at fault. PFR File, Tab 1 at 20. We are not persuaded.

The Board must give deference to an administrative judge’s credibility

determinations when they are based explicitly or implicitly on the observations of

witnesses testifying at hearing and may overturn such determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly

resolved the credibility determinations in accordance with the factors set forth in

Hillen. 4 She identified the factual questions in dispute, summarized the agency’s

charges, and then analyzed the evidence that the parties offered with respect to

the charges. ID at 2-8. For each charge, as discussed below, the administrative

judge stated that she believed the testimony of the agency’s witnesses over that of

the appellant, and explained why she found the appellant’s testimony less

credible. Id.

Regarding the first charge, delay of patient care, the agency alleged that, on

four occasions, the appellant delayed faxing chemotherapy prescriptions to the

Specialty Pharmacy for dispensing which, in turn, caused patients to experience

delays. IAF, Tab 4 at 63-64. For the first specification, the administrative judge

found that the appellant testified that the delay in faxing the prescription was an

oversight on her part and, based on the appellant’s testimony, sustained the

specification. ID at 2. Regarding the second specification, the administrative

judge observed that, while the appellant admitted that her fax transmission of the

prescription was delayed, she attributed the delay to trouble with her fax machine.

To resolve credibility issues, an administrative judge must identify the factual

questions in dispute, summarize the evidence on each disputed question, state which

version she believes, and explain in detail why she found the chosen version more

credible, considering such factors as (1) the witness’s opportunity and capacity to

observe the event or act in question; (2) her character; (3) any prior inconsistent

statement by the witness; (4) her bias, or lack of bias; (5) the contradiction of her

version of events by other evidence or its consistency with other evidence; (6) the

inherent improbability of her version of events; and (7) her demeanor. Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987).

ID at 3. The administrative judge did not credit the appellant’s testimony and

instead credited the testimony of the appellant’s supervisor, who testified that the

appellant had access to three other fax machines in the pharmacy that could have

been used to timely fax the prescription. Id. In sustaining the third specification,

the administrative judge noted that the appellant did not deny that she delayed

transmitting the prescription. Id. While the administrative judge did not sustain

the fourth specification, she found that the three specifications she did sustain

were sufficient to sustain the delay of patient care charge. ID at 4. Given the

administrative judge’s explicit demeanor-based findings, we find that the

appellant has failed to provide a sufficiently sound reason to disturb the

administrative judge’s findings that the agency proved its first charge.

See Haebe, 288 F.3d at 1301.

As for the second charge, failure to timely respond to phone calls and/or

other contacts, the agency alleged that the appellant failed to respond to

voicemails from a patient regarding the status of his chemotherapy medication

refill and failed to respond to the Specialty Pharmacy regarding information

needed for a faxed prescription. IAF, Tab 4 at 64. The appellant alleges on

review that other factors may have interceded, such as malfunctions of newly

installed telephone equipment. PFR File, Tab 1 at 19-20. In sustaining this

charge, the administrative judge considered the appellant’s testimony that she did

not know that she had received any voicemails and that she purposefully had not

set up her voice mailbox to avoid being overwhelmed with voicemails, but did not

find the appellant’s testimony persuasive. ID at 5-6. The administrative judge

did not find it reasonable for the appellant to have assumed, without confirming,

that she had no voicemails, especially in light of the fact that she communicated

with other pharmacies via telephone. ID at 6. Thus, the administrative judge

considered the appellant’s argument regarding the telephone system below and we

find that the appellant has failed to provide a sufficiently sound reason to disturb

the administrative judge’s credibility determinations on review. See Haebe,

288 F.3d at 1301.

For the third charge, failure to timely perform duties, the agency alleged

that, on four occasions, the appellant failed to take actions that were needed to

ensure medications were filled or refilled. IAF, Tab 4 at 64-65. On review, the

appellant states that there was poor organization within her department, which

may have led to her inability to timely perform her duties. PFR File, Tab 1

at 19-20. As to specification one, the administrative judge found that the

appellant did not specifically deny that she delayed verifying a patient’s

information and that she neither offered testimony to refute the agency’s evidence

nor denied that it was her responsibility to verify such information. ID at 6.

The administrative judge further found that the appellant admitted, both in her

written reply and in her testimony, that specifications two, three, and four under

this charge were due to oversights on her part. ID at 7-8. We have considered

the appellant’s arguments on review concerning the administrative judge’s

weighing of the evidence for this charge, but we discern no reason to reweigh the

evidence or substitute our assessment of the record evidence for that of the

administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06

(1997) (finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); see also Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same). Thus, the administrative judge

properly found that the agency proved its charges and sustained the removal

action.

The administrative judge correctly found that the agency did not hold the

appellant to a higher performance standard than that which would have been

required under chapter 43.

On review, the appellant reasserts her argument that the agency used

chapter 75 to circumvent her chapter 43 performance standards. PFR File, Tab 1

at 13; I-3 AF, Tab 12 at 8-13. Thus, she argues that the agency’s measurement of

her performance was not accurate and reasonable. PFR File, Tab 1 at 7-14.

We are not persuaded.

It is well settled that it is within the agency’s discretion to take action

against an appellant under chapter 75, governing adverse actions, rather than

under chapter 43, governing performance-based actions. See Lovshin v.

Department of the Navy, 767 F.2d 826, 842-43 (Fed. Cir. 1985) (en banc).

However, if the subject of an agency’s charge is covered by a performance

standard of the appellant’s position, the agency may not impose a different

standard in taking the chapter 75 action. McGillivray v. Federal Emergency

Management Agency, 58 M.S.P.R. 398, 402 (1993). The administrative judge

correctly considered this appeal as a chapter 75 action, and found that the agency

was not circumventing chapter 43 by charging the appellant under chapter 75. 5

ID at 9-10. She found that, because the charge of delay in patient care was

covered by a performance standard, the agency could not hold the appellant to a

higher standard by taking a chapter 75 action. Id. The administrative judge

further found that the agency did not hold the appellant to a higher performance

standard than would have been required under chapter 43. Id. The appellant’s

assertions on review fail to provide a basis for disturbing the administrative

judge’s findings. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.

at 359.

The administrative judge properly found that the appellant failed to establish her

affirmative defense of disability discrimination based on a failure to

accommodate.

On review, the appellant reasserts her claim that the agency initially

granted her request to have an office with a window with natural light in October

2014, but that the accommodation was subsequently revoked. PFR File, Tab 1

at 5-7, 14-17; I-3 AF, Tab 12 at 5-6, 13-16. She also reasserts her argument that

The agency’s Standard Form 50 affecting the appellant’s removal states that the action

taken was a removal pursuant to chapter 75. IAF, Tab 4 at 14.

the agency failed to restructure her position or to conduct a job search for a

position suitable for reassignment. PFR File Tab 1 at 17-19; I-3 AF, Tab 12

at 16-18. We find these arguments without merit. 6

It is the appellant’s burden to prove her claim of disability discrimination

by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). An agency must

provide a reasonable accommodation to a qualified individual with an actual

disability or a record of a disability. Fox v. Department of the Army,

120 M.S.P.R. 529, ¶ 34 (2014). In order to establish a disability -based failure to

accommodate claim, an appellant must show that: (1) she is an individual with a

disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual

with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed

to provide a reasonable accommodation. Miller v. Department of the Army,

121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.2(o)(4).

Here, the administrative judge found that the appellant was an individual

with a disability who was granted a series of reasonable accommodations for her

sleep apnea and narcolepsy in 2014 and 2015. ID at 11. Neither party disputes

these findings on review. The administrative judge found, however, that the

appellant failed to establish that she was a qualified individual with a disability.

ID at 14. We agree.

To demonstrate that she is a qualified individual with a disability, the

appellant must show that she could perform the essential functions of her

position, with or without an accommodation, or that she could perform in a vacant

funded position to which she could have been assigned. See Clemens v.

Department of the Army, 120 M.S.P.R. 616, ¶ 11 (2014). The administrative

The appellant also alleges that the administrative judge did not allow her to raise

disability discrimination as an affirmative defense. PFR File, Tab 1 at 5. However, the

record reflects that the administrative judge listed disability discrimination based on a

failure to accommodate in the summary of the telephonic prehearing conference, to

which the appellant did not object. I-2 AF, Tab 6 at 3-5. Furthermore, as set forth

above, the administrative judge made findings on this issue. ID at 12-14. Thus, this

argument is without merit.

judge found that the appellant was not a qualified individual with a disability

because the appellant failed to demonstrate that she could perform the essential

functions of her position with or without a reasonable accommodation. ID at 14.

Specifically, the administrative judge found that the agency granted the appellant

every accommodation she requested, yet the appellant still had performance

deficiencies and was not able to perform some of the essential functions of her

position. Id. The administrative judge also found that the appellant did not

introduce any evidence that she requested that her position be restructured or

offer any evidence on how her position could have been restructured. ID at 10.

Furthermore, while the appellant argues that she made multiple efforts to be

reassigned to a different position, she did not offer any evidence in support of

such an assertion and, as the administrative judge observed, the record does not

reflect any position the appellant could have performed not involving patient

care. ID at 16; see Clemens, 120 M.S.P.R. 616, ¶ 17 (finding that the appellant

bears the ultimate burden of proving that there was a position the agency would

have found and could have assigned to her). Thus, we agree with the

administrative judge that the appellant failed to demonstrate that she was a

qualified individual with a disability. 7 ID at 14.

Additionally, even if we found that the appellant was a qualified individual with a

disability, we would affirm the administrative judge’s finding that the agency did not

fail to provide the appellant’s requested reasonable accommodations. ID at 14.

As observed by the administrative judge, the record reflects that the appellant was

provided the reasonable accommodations she requested. ID at 11; IAF, Tab 4 at 70-82.

On review, the appellant does not dispute that that these reasonable accommodations

were provided. PFR File, Tab 1 at 6-7. While she argues that her reasonable

accommodation of having an office with a window with natural light was subsequently

revoked when she was placed on a detail from her permanent position, id. at 5-7, 14-17,

the administrative judge found that the appellant testified that she had access to a

window with natural light while she was on detail, ID at 13. Thus, although the

appellant did not have a private office with a window, she still had access to, and was

allowed to work at, a workspace which included her needed accommodation.

See Miller, 121 M.S.P.R. 189, ¶ 21 (finding that the appellant was not entitled to the

accommodation of her choice and that the agency acted within its discretion to offer her

reasonable and effective accommodations).

The administrative judge correctly found that the agency met the nexus

requirement and that the penalty of removal was reasonable.

The nexus requirement, for purposes of determining whether an agency has

shown that its action promotes the efficiency of the service, means there must be

a clear and direct relationship between the articulated grounds for an adverse

action and either the employee’s ability to accomplish her duties satisfactorily or

some other legitimate Government interest. Scheffler v. Department of Army,

117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The

administrative judge found that there was a nexus between the appellant’s

misconduct and the efficiency of the service. ID at 14-15.

The appellant alleges on review that her removal does not promote the

efficiency of the service due to her past satisfactory work performance and length

of service. PFR File, Tab 1 at 20-21. There is a sufficient nexus between an

employee’s conduct and the efficiency of the service when the conduct occurred

at work. Scheffler, 117 M.S.P.R. 499, ¶ 10. Here, the sustained misconduct

directly pertained to the appellant’s work for the agency. IAF, Tab 4 at 63-66.

Under the circumstances, the appellant has not shown that the administrative

judge erred in finding that nexus was established. Further, her arguments

regarding her past work performance and length of service were properly

considered as mitigating factors in the penalty analysis, as discussed below.

On review, the appellant alleges that the deciding official failed to consider

mitigating factors, including the impact of the appellant’s medical condition and

the agency’s failure to provide reasonable accommodations, her 10 years of

service with the agency, her past satisfactory work performance, her lack of prior

discipline, her potential for rehabilitation, and the agency’s failure to consider a

lesser punishment than removal. PFR File, Tab 1 at 21-23. When, as here, all the

agency’s charges have been sustained, the Board will review an agency-imposed

penalty only to determine if the agency considered all of the relevant Douglas

factors and exercised management discretion within tolerable limits of

reasonableness. 8 Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 25

(2014). In determining whether the selected penalty is reasonable, the Board

gives due deference to the agency’s discretion in exercising its managerial

function of maintaining employee discipline and efficiency. Id. The Board will

modify a penalty only when it finds that the agency failed to weigh the relevant

factors or that the penalty the agency imposed clearly exceeded the bounds of

reasonableness. Id.

As the administrative judge found, the deciding official considered

aggravating factors, including the seriousness of the conduct and its impact on

patients, the deciding official’s loss of confidence in the appellant’s ability to

carry out her duties, the appellant’s failure to accept responsibility and/or express

remorse for her conduct, and the effect her actions had on the reputation of the

patient care among the veterans the medical center serves, in reaching his

decision that removal was the proper penalty. ID at 15-16; I-3 AF, Tab 6,

Hearing Recording (HR) (testimony of the deciding official); IAF, Tab 4

at 36-38. Further, the deciding official specifically took into consideration

relevant mitigating factors, such as the appellant’s length of service with the

agency, her lack of prior discipline, her past performance record, and the

appellant’s medical condition and reasonable accommodations, but determined

that these mitigating factors did not overcome the gravity of the charged

misconduct. ID at 15-16; HR (testimony of the deciding official); IAF, Tab 4

at 36-38. The deciding official also considered whether to impose an alternative

sanction but determined that an alternative penalty was not appropriate because

the serious nature of the appellant’s conduct rendered management unable to trust

her to maintain quality care for patients. HR (testimony of the deciding official);

IAF, Tab 4 at 38.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determination in

adverse actions.

In light of the above, we agree with the administrative judge that the

deciding official correctly weighed the relevant Douglas factors, and that the

penalty of removal was reasonable. See L’Bert v. Department of Veterans Affairs ,

88 M.S.P.R. 513, ¶¶ 17-23 (2001) (finding removal to be an appropriate penalty

where the appellant failed to carry out her “preregistration” responsibilities by

not making patient contact, endangering their safety); Tobochnik v. Veterans

Administration, 9 M.S.P.R. 82, 83-85 (1981) (finding that the penalty of removal

did not exceed the bounds of reasonableness when the serious nature of the

employee’s misconduct could reasonably be expected to adversely affect cancer

patients).

NOTICE OF APPEAL RIGHTS 9

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.

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.

(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. 10 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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.