Jose Ybarra v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSE C. YBARRA, DOCKET NUMBER

Appellant, CH-0752-17-0422-I-2

v.

DEPARTMENT OF JUSTICE, DATE: March 21, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.

Chad Y. Tang , Esquire, Washington, D.C., for the agency.

Joy E. Williams , Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed the appellant’s removal for off-duty misconduct. 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

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

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 in paragraph 11 below regarding the issue of nexus, we

AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was a preference eligible GS-13 Special Agent for the

agency’s Federal Bureau of Investigation (FBI). Ybarra v. Department of Justice,

MSPB Docket No. CH-0752-17-0422-I-2, Appeal File (I-2 AF), Tab 5 at 16. The

appellant worked cases involving crimes against children and had done so for

10 years at the time of the events underlying this appeal. I-2 AF, Tab 13 at 23.

On February 15, 2017, the agency’s Office of Professional Responsibility (OPR)

proposed the appellant’s removal based on one charge of unprofessional off-duty

conduct. I-2 AF, Tab 7 at 17-38. The agency specified that, during the past year,

the appellant had made persistent and inappropriate advances toward two female

employees at two different stores (a cashier at a Meijer’s grocery store and a

service worker at a Dairy Queen), both of whom had separately complained to the

local police about the appellant’s conduct. Id. at 20-23, 27-28, 31-32. OPR

brought four other charges based on additional alleged misconduct, including the

appellant’s failure to report contact that he had with the police concerning the two

store employees, lack of candor with regard to these same incidents, several

unwanted sexual advances toward colleagues, profane outbursts during a firearms

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training session, the appellant’s role in a domestic disturbance between his son’s

mother and a female neighbor with whom the appellant was having a relationship,

and unauthorized use of an FBI database to obtain the telephone number of a

former female investigation subject. Id. at 18-20, 26-30. OPR, however, did not

consider these four other charges in proposing the appellant’s removal. Rather, it

considered these other charges individually, stating that it would have proposed

various levels of discipline for each of them but did not do so in light of the

proposed removal for unprofessional conduct off-duty. Id. at 32-35.

¶3 On May 19, 2017, after the appellant responded to the proposal, the

Assistant Director of OPR issued a decision removing the appellant. I-2 AF,

Tab 5 at 17-40. Consistent with the proposal letter, the deciding official

considered all of the alleged instances of misconduct in isolation, determining

that the inappropriate encounters with the store employees warranted removal,

and in light of that, the other alleged offenses did not warrant separate sanctions.

Id. at 34-37.

¶4 The appellant filed a Board appeal contesting the merits of the agency’s

action. Ybarra v. Department of Justice, MSPB Docket No. CH-0752-17-0422-

I-1, Initial Appeal File (IAF), Tab 1. Shortly thereafter, the administrative judge

dismissed the appeal without prejudice to allow the appellant to pursue an internal

appeal to the agency’s Disciplinary Review Board. IAF, Tabs 8-9. The

Disciplinary Review Board affirmed the removal, and the appellant refiled his

appeal. I-2 AF, Tab 1, Tab 5 at 8-10. He waived his right to a hearing. I-2 AF,

Tab 17 at 4.

¶5 After the close of the record, the administrative judge issued an initial

decision sustaining the removal. I-2 AF, Tab 22, Initial Decision (ID). She found

that the agency proved its charge of unprofessional conduct off-duty, ID at 11-14,

that the agency established a nexus between that conduct and the efficiency of the

service, ID at 14-17, and that the agency showed that the removal penalty was

reasonable, ID at 17-24. The appellant has filed a petition for review, disputing

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the administrative judge’s nexus and penalty analyses. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 3.

ANALYSIS

¶6 In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency

bears the burden of proving by preponderant evidence that its action was taken for

such cause as would promote the efficiency of the service. MacDonald v.

Department of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(a)(1)

(ii). To meet this burden, the agency must prove its charge, establish a nexus

between the charge and the efficiency of the service, and demonstrate that the

penalty imposed was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144,

1147 (Fed. Cir. 1997). On petition for review, the appellant does not dispute that

the agency proved its charge of unprofessional conduct off-duty. For the reasons

explained in the initial decision, we agree with the administrative judge that the

agency proved its charge, and because the appellant does not challenge this

finding on review, we do not address it here. ID at 11-14; see Dobert v.

Department of the Navy, 74 M.S.P.R. 148, 150 n.1 (1997); 5 C.F.R. § 1201.114(b)

(“The Board normally will consider only issues raised in a timely filed petition or

cross petition for review.”). The appellant does, however, challenge that

administrative judge’s findings on nexus and penalty. We address those issues in

turn.

The agency established nexus.

¶7 Not every instance of off-duty misconduct bears a nexus to the efficiency of

the service. An agency may show nexus between off-duty misconduct and the

efficiency of the service by three means: (1) a rebuttable presumption in certain

egregious circumstances; (2) preponderant evidence that the misconduct adversely

affects the appellant’s or coworkers’ job performance or the agency’s trust and

confidence in the appellant’s job performance; or (3) preponderant evidence that

the misconduct interfered with or adversely affected the agency’s mission.

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Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶ 16 (2012), aff’d,

526 F. App’x 982 (Fed. Cir. 2013).

¶8 In this case, the administrative judge found that the appellant’s off-duty

conduct was not sufficiently egregious to carry a presumption of nexus. ID at 15.

Nevertheless, she found that the agency established nexus because the appellant’s

misconduct contravenes the agency’s primary mission to protect people. ID at 16.

She found that this was particularly so given that the Dairy Queen Service worker

was 16 years old, and the appellant was specifically tasked with enforcing Federal

statutes to protect children under the age of 18. ID at 16. She further found that

the appellant’s misconduct adversely affected the trust and confidence of his

supervisors and that several local law enforcement agencies indicated that they no

longer wished to work with the appellant. ID at 17.

¶9 On petition for review, the appellant argues that his off-duty conduct

consisted of mere flirtation and was not so serious as to bear a nexus to his

employment. PFR File, Tab 1 at 10. As we read the appellant’s argument, it

appears to pertain to whether a presumption of nexus should arise. Id. at 9-10.

However, as explained above, the administrative judge already found that there

was no presumption of nexus. ID at 15. The appellant does not address the

connections that the administrative judge found between his misconduct and the

agency’s mission, the trust and confidence of his supervisors, or the agency’s

relationship with local law enforcement. ID at 16-17. We therefore find that the

appellant’s arguments provide no basis to disturb the initial decision.

¶10 Having reviewed the record and the administrative judge’s analysis,

we agree with her that the agency established a nexus between the appellant’s

off-duty misconduct and the efficiency of the service. First, we agree with the

administrative judge that the agency established nexus by showing that the

appellant’s conduct undermined his supervisors’ trust and confidence in him and

his ability to perform his duties as an FBI Special Agent. ID at 17; I-2 AF, Tab 7

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at 31-32; see Adams v. Defense Logistics Agency, 63 M.S.P.R. 551, 555-56

(1994); Royster v. Department of Justice, 58 M.S.P.R. 495, 499-500 (1993).

¶11 Second, we agree that the agency has established nexus by showing that the

appellant’s conduct adversely affected its mission. Specifically, the appellant’s

interactions with the two store employees came to the attention of the Charlotte,

Michigan Police Department, which expressed discomfort at continuing to work

with the appellant. ID at 17; I-2 AF, Tab 7 at 31, Tab 10 at 62-68. Thompson v.

Department of Justice, 51 M.S.P.R. 43, 50 (1991) (finding removal appropriate

where, among other things, the appellant’s off-duty misconduct adversely affected

the agency’s relationship with local law enforcement agencies). Furthermore, we

agree with the administrative judge that the appellant’s persistent and

inappropriate advances toward a 16-year-old Dairy Queen employee were directly

opposed to the agency’s mission of preventing the exploitation of minors. ID

at 16; see Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987) (finding

that off-duty misconduct that is directly opposed to the agency’s mission has a

nexus to the efficiency of the service on the basis that it adversely affects the

agency’s mission); see also Allred v. Department of Health and Human Services ,

786 F.2d 1128, 1131-32 (Fed. Cir. 1986) (finding nexus based on the appellant’s

conviction for off-duty child molestation, given that the mission of the agency

was to administer health and social services to disadvantaged persons like the

victim of the appellant’s offense). Finally, we modify the initial decision to add

that the appellant’s persistent and inappropriate advances toward the Meijer’s

cashier adversely affected the agency’s reputation because that individual was

aware that the appellant was an FBI agent. I-2 AF, Tab 10 at 66; see Jones v.

Government Printing Office, 13 M.S.P.R. 365, 369 (1982) (finding nexus where

the appellant’s off-duty misconduct affected the public reputation of the agency).

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The removal penalty is within the tolerable limits of reasonableness.

¶12 Because the agency’s only charge is sustained, the Board’s authority to

review the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R.

253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only

to determine if the agency considered all of the relevant factors and exercised

management discretion within tolerable limits of reasonableness. Id. 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, recognizing that the Board’s

function is not to displace management’s responsibility but to assure that

management judgment has been properly exercised. Id. Thus, the Board will

disturb an agency’s chosen penalty only if it finds that the agency failed to weigh

relevant factors or that the agency’s judgment clearly exceeded the limits of

reasonableness. Id.

¶13 In this case, the administrative judge found that the appellant’s offenses

demonstrated a serious lack of judgment, especially considering that the appellant

harassed a 16-year-old service worker at the Dairy Queen a mere 3 months after

the local police had warned him about bothering a young cashier at Meijer’s.

ID at 18-19. In light of the agency’s mission to protect children, she considered

the Dairy Queen service worker’s age to be an aggravating factor. Id. She also

found that the damage that the appellant’s conduct caused to the agency’s

relationship with local law enforcement was an aggravating factor and that the

appellant’s status as a law enforcement officer weighed heavily against him. ID

at 19. The administrative judge further found that the appellant had been

repeatedly warned about such behavior in the past, to include a 45-day suspension

in 2003, for, among other things, making sexually inappropriate remarks to

female colleagues. ID at 19-21; I-2 AF, Tab 11 at 82-88. She found mixed

evidence relating to the appellant’s rehabilitative potential, including on the one

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hand the appellant’s acknowledgment of wrongdoing and expressions of remorse,

and on the other hand the absence of any concrete steps to amend his behavior

and his attempt to deflect responsibility for his own misconduct onto the

16-year-old Dairy Queen service worker and her mother. ID at 21-23.

Considering these facts together, the administrative judge concluded that the

appellant had poor rehabilitative potential. ID at 23. She also found that removal

fell within the prescribed range for the charged offense, according to section 5.21

of OPR’s Offense Code, which covers off-duty misconduct. ID at 20. The

administrative judge acknowledged the appellant’s 18 years of service with the

agency, his excellent job performance, and the difficult personal circumstances

that he was facing at the time, but she found that the deciding official considered

these mitigating factors and that they did not provide a sufficient basis to disturb

the penalty determination. ID at 19-20, 23-24.

¶14 On petition for review, the appellant notes that, although the agency

charged him with a number of offenses, it based its action solely on the charge

relating to his interactions with the two female store employees. PFR File, Tab 1

at 5. In other words, “[a] separate selected penalty was imposed for each offense

code violation, and the sanction of removal was selected only for the Offense

Code 5.21 violation.” Id. He asserts that the administrative judge failed to

address this argument below. Id. The appellant asserts that the standard penalty

for a 5.21 violation is a 5-day suspension and that the agency imposed the

removal penalty because it considered a 45-day suspension 14 years prior to

constitute “serious aggravation.” He argues, however, that this prior discipline

was too remote in time to constitute an aggravating factor. PFR File, Tab 1

at 5-6; I-2 AF, Tab 5 at 32-33. He argues that the deciding official considered

that his behavior occurred over an extended period of time and that there was a

concern about the appellant’s reputation with the local law enforcement

community, but she did not consider these other factors to be “serious.” Id. at 7.

The appellant also emphasizes the mitigating factors in this case, particularly his

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excellent performance history, and argues that his past performance constitutes

evidence of his rehabilitative potential. Id. at 8.

¶15 As an initial matter, we agree with the appellant that the agency in this case

took an unusual approach to its disciplinary action. PFR File, Tab 1 at 5. As far

as we are aware, the universal practice in Federal employee discipline has always

been to consider multiple charges in the aggregate. See, e.g., Brownell v. United

States, 164 Ct. Cl. 406, 407 (1964); Elchibegoff v. United States, 123 Ct. Cl. 709

(1952); Lellmann v. United States, 37 Ct. Cl. 128, 131-32 (1902); Bartlett v. U.S.

Postal Service, 12 M.S.P.R. 225, 226 (1982); Fargnoli v. Department of

Commerce, 123 M.S.P.R. 330, ¶ 3 (2016). The agency in this case took the

opposite approach, assessing each charge in isolation and proposing the

appellant’s removal based solely on what it considered to be the most serious one.

See supra ¶ 2. Notwithstanding, the Board is required to review the agency’s

decision in an adverse action solely on the grounds invoked by the agency; the

Board may not substitute what it considers to be a more adequate or proper basis.

Byers v. Department of Veterans Affairs, 89 M.S.P.R. 655, ¶ 22 (2001). Because

the agency has expressly chosen to overlook the large majority of misconduct

alleged in its notice of proposed removal, we base our decision solely on the

single charge of unprofessional conduct off-duty. That being said, we disagree

with the appellant that the administrative judge failed to consider this in reaching

her decision. PFR File, Tab 1 at 5. The administrative judge explicitly noted that

the four remaining charges did not figure into the removal. 2 ID at 3-9. Nor is

there any indication that the administrative judge or the agency considered these

2

The administrative judge stated that the agency imposed separate suspensions based on

the four remaining charges. ID at 4, 6, 8-9. This finding does not appear to be

supported by the record, given that OPR stated that it “would normally propose”

suspensions for the other four charges, but was “not imposing a separate sanction” in

this case in light of the proposal to remove. IAF, Tab 7 at 32-35. In any event, we find

that this issue is immaterial because the only matter before the Board is the appellant’s

removal.

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matters in their penalty analyses. ID at 17-24; IAF, Tab 5 at 32-37, Tab 7

at 30-35.

¶16 We next address the agency’s table of penalties as contained in OPR’s

Offense Code. Despite its heavy use of the Offense Code in structuring this

adverse action, the agency has not submitted a copy of it for the record.

Nevertheless, the agency’s description of what the Code contains does not appear

to be in dispute. According to the agency, section 5.21 of the Offense Code

provides that an employee is prohibited from:

[e]ngaging in conduct, while off duty, which dishonors, disgraces, or

discredits the FBI; seriously calls into question the judgment or

character of the employee; or compromises the standing of the

employee among his peers or his community.

IAF, Tab 7 at 27. The Code further states that the “standard penalty” for violating

section 5.21 is a 5-day suspension, although the full range of penalties, from oral

reprimand to removal, is available depending on the circumstances. Id. at 31.

The appellant is correct that the Offense Code is written so as to make a 5-day

suspension the baseline penalty for section 5.21 off-duty misconduct. PFR File,

Tab 1 at 5-6. However, we do not find this generic provision or its 5 -day

“standard penalty” particularly instructive as to what penalty is appropriate under

the specific facts of this case. The Board will review an agency -imposed penalty

only to determine if the agency considered all the relevant factors and exercised

management discretion within tolerable limits of reasonableness . See Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 307 (1981) (finding that agency tables

of penalties should not be applied so inflexibly as to impair consideration of other

factors relevant to the individual case). We do find, however, that because the

removal penalty is available for a section 5.21 violation, the agency is not

constrained by the Offense Code from removing the appellant.

¶17 Regarding the appellant’s disciplinary record, the administrative judge

acknowledged but rejected the appellant’s argument that his 2003 suspension

was too remote in time to be considered an aggravating factor in his

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2017 removal. ID at 19. On petition for review, the appellant disputes this

finding, relying on Kehrier v. Department of Justice, 27 M.S.P.R. 477 (1985), and

Bennett v. Department of Transportation, 15 M.S.P.R. 686 (1983), for the

proposition that discipline more than 10 years old is not probative in a penalty

analysis. PFR File, Tab 1 at 6 7. In Kehrier, the presiding official found that the

appellant’s suspension 10 years prior was too remote in time to be considered in

assessing the penalty for the adverse action under appeal. 27 M.S.P.R. at 479-81.

In addressing this issue, the Board stated that the suspension “may have been

deemed too remote in time” but that the issue of prior discipline was immaterial

to the outcome of the appeal. Kehrier, 27 M.S.P.R. at 480 n.1. Thus, the Board

in Kehrier did not directly address whether the appellant’s prior discipline was, in

fact, too remote in time to consider, and we find that this case lends weak support

to the appellant’s argument. In Bennett, the appellants argued that they were

treated disparately from individuals who committed similar misconduct 10 years

prior, but the Board found that the prior incident was too remote in time to

constitute a substantially similar situation. 15 M.S.P.R. at 687. We find that

Bennett is inapposite because it concerns a different penalty factor than the one at

issue here, i.e., disparate penalty rather than disciplinary record. See generally

Douglas, 5 M.S.P.R. at 305-06.

¶18 The agency counters the appellant’s argument, relying on Lewis v.

Department of the Air Force, 51 M.S.P.R. 475 (1991). PFR File, Tab 3 at 11-12.

In Lewis, the administrative judge found that a suspension that occurred

2 1/2 years prior was too remote in time to be considered an aggravating penalty

factor, but the Board disagreed. 51 M.S.P.R. at 485. The Board explained that it

would discount prior discipline if there were an agency rule prohibiting

consideration of such matters beyond a certain period of time, but the applicable

rule in that case only barred consideration after 3 years. 3 Id. We agree with the

3

There does not seem to be any agency rule in this case that would prohibit

consideration of the appellant’s 2003 suspension.

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agency that the language in Lewis seems to suggest that passage of time can never

be a sufficient reason by itself to discount prior discipline, but we also agree with

the appellant that Lewis is distinguishable from the instant appeal on the facts

because a much greater amount of time had passed since the suspension at issue

here than the one at issue in Lewis. PFR File, Tab 1 at 7.

¶19 Having considered the parties’ arguments and the relevant case law, we find

that it was permissible for the agency to consider the appellant’s 2003 suspension

as an aggravating factor but that the passage of time lessens its import. Although

none of the case law seems to bar consideration of prior discipline due merely to

passage of time, we find that passage of time may go to the weight that the prior

discipline should be accorded, along with the severity of the prior discipline and

whether the current disciplinary action is being taken for similar reasons. See

Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 326 (1992) (noting that

the appellant had been suspended “[j]ust six months prior to the offenses involved

in this appeal”); Gleason v. Department of the Army, 38 M.S.P.R. 547, 549 (1988)

(affirming the initial decision in which the administrative judge found that the

seriousness of the appellant’s offense was greatly aggravated by his recent prior

disciplinary record for similar misconduct); Griffin v. Department of the Army,

15 M.S.P.R. 738, 740 (1983) (noting that the appellant had been suspended twice

within the previous 5 months for the same offense). In this case, we find that the

appellant’s prior discipline was serious – a 45-day suspension with an explicit

warning that it was his “second and final notice that offensive interpersonal

interactions will not be tolerated by the Bureau.” I-2 AF, Tab 11 at 82, 85. In

addition, the prior suspension was based largely on the same general type of

behavior underlying the removal at issue here, i.e., inappropriate comments to

female coworkers. Id. at 83-84. Therefore, notwithstanding the significant

passage of time, we agree with the administrative judge that the agency did not

abuse its discretion in giving the appellant’s 2003 suspension significant weight

as an aggravating factor.

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¶20 Regarding the remaining penalty factors, although we agree with the

appellant that he has had excellent work performance, we do not agree that

this speaks strongly to his rehabilitative potential. PFR File, Tab 1 at 8; see

McCreary v. Office of Personnel Management, 27 M.S.P.R. 459, 462 (1985)

(finding that, although the appellant had good work performance, he lacked

rehabilitative potential). The charged offense does not relate to the appellant’s

performance in his position, but rather to his interpersonal conduct outside the

workplace. IAF, Tab 7 at 27-28, 31-32. For the reasons explained in the initial

decision, we agree with the administrative judge that the appellant has exhibited

poor rehabilitative potential. ID at 21-23. In particular, we find the appellant’s

response to the notice of proposed removal to be disturbing where he suggests

that, had the Dairy Queen service worker’s mother called him instead of the

police, he would have known whether this girl was having issues that were

causing her to “engage superfluously” with him and he could perhaps have been

recruited as a father figure or “standby babysitter.” ID at 22-23; IAF, Tab 5

at 29, 56. This response exhibits deflection, denial, and the appellant’s latent

wish that he could have continued to pursue a relationship with this girl, none of

which bode well for his rehabilitative potential. It also exhibits the appellant’s

lack of appreciation for the seriousness of his misconduct. He continues to

characterize his actions as “off-duty flirtation,” PFR File, Tab 1 at 10, but based

on the undisputed facts as set forth in the relevant police reports, his behavior

seems more akin to stalking or harassment, a fact that he still does not seem to

understand. 4 IAF, Tab 10 at 85-89.

¶21 In light of all the pertinent penalty factors, including the troubling and

repeated nature of the appellant’s offenses, their relationship to the appellant’s

duties and responsibilities, the appellant’s multiple warnings about his

inappropriate conduct towards women, his status as a law enforcement officer, the

4

We note that even unwanted “flirtation” does not typically result in the recipient

seeking protection from the police, as occurred twice in this case within the space of a

few months.

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effect of the appellant’s conduct on the reputation of the agency and its

relationship with the local law enforcement community, the appellant’s personal

stresses and good performance history, and the deciding official’s consideration

of the same, we agree with the administrative judge that there is no basis to

mitigate the penalty. ID at 17-24; IAF, Tab 5 at 32-34; see Douglas, 5 M.S.P.R.

at 306.

NOTICE OF APPEAL RIGHTS 5

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.

5

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.

15

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,

16

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

17

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

6

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.

18

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.