Opinion

Kammunkun Diana v. Department of Defense

Court: Merit Systems Protection Board
Filed: Apr 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

identifying the strength of an agency’s evidence in support of a personnel action as one factor relevant to its burden of proving that it would have taken the same personnel action in the absence of an employee’s protected disclosures or activity

How later courts described this case

identifying the strength of an agency’s evidence in support of a personnel action as one factor relevant to its burden of proving that it would have taken the same personnel action in the absence of an employee’s protected disclosures or activity
recognizing that “the Board determines de novo the underlying facts of the case such as whether the employee engaged in the alleged misconduct and whether the agency exceeded its authority in determining that the employee’s misconduct would adversely affect the efficiency of the service”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DIANA Z. KAMMUNKUN, DOCKET NUMBER

Appellant, SF-0752-17-0667-M-2

DEPARTMENT OF DEFENSE, DATE: April 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elbridge Z. Smith , Esquire, Renn C. Fowler , Esquire, and Gary M. Gilbert ,

Esquire, Silver Spring, Maryland, for the appellant.

Elbridge W. Smith , Esquire, Honolulu, Hawaii, for the appellant.

Loraine Kovach-Padden , Esquire, and Ryan L. Wischkaemper , Esquire,

Washington, D.C., 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

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

BACKGROUND

The appellant filed this chapter 75 appeal, challenging her removal from

service. Kammunkun v. Department of Defense, MSPB Docket No. SF-0752-17-

0667-I-1, Initial Appeal File (IAF), Tab 1. She indicated in her initial appeal that

she had filed a whistleblower reprisal complaint with the Office of Special

Counsel (OSC) regarding matters arising before her removal. Id. The Board

therefore docketed an individual right of action (IRA) appeal. Kammunkun v.

Department of Defense, MSPB Docket No. SF-1221-17-0675-W-1, Initial Appeal

File (0675 IAF), Tab 2. The appellant subsequently submitted evidence showing

that she amended her OSC complaint to add an allegation that she was removed in

reprisal for her whistleblowing. 0675 IAF, Tab 22. The administrative judge

therefore joined the removal and IRA appeals. 0675 IAF, Tab 54.

The administrative judge held a hearing and issued a single initial decision

in the joined appeals. 0675 IAF, Tab 68, Initial Decision. He found that the

appellant was permitted to challenge her removal in a direct Board appeal or an

OSC complaint, but not both, and that the appellant made a binding election to

pursue the matter in an OSC complaint. Id. at 7-8. As a result, the administrative

judge addressed the merits in just the IRA appeal, concluding that the appellant

was not entitled to corrective action regarding her removal or any other personnel

action. Id. at 14-52. Among other things, he found that the agency’s evidence in

support of the appellant’s removal was strong. Id. at 45-49; see Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 11 (2022) (identifying the

strength of an agency’s evidence in support of a personnel action as one factor

relevant to its burden of proving that it would have taken the same personnel

action in the absence of an employee’s protected disclosures or activity).

The appellant challenged the initial decision before the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit). Although the court affirmed

regarding the appellant’s IRA appeal, it remanded for further proceedings

regarding the appellant’s chapter 75 appeal. Kammunkun v. Department of

Defense, 800 F. App’x 916, 917 (Fed. Cir. 2020). The court explained that the

appellant, who was a supervisor, was not an “employee” subject to the relevant

statutory and regulatory election of remedy requirements. Id.; see Requena v.

Department of Homeland Security, 2022 MSPB 39, ¶¶ 7-8, 10-12 (acknowledging

that the Federal Circuit’s decision in Kammunkun properly determined that

supervisors are not required to elect between filing a direct adverse action appeal

with the Board or an OSC complaint followed by a Board appeal).

On remand from the Federal Circuit, the administrative judge held a new

hearing and further developed the record. 2 E.g., Kammunkun v. Department of

Defense, MSPB Docket No. SF-0752-17-0667-M-2, Refiled Remand File

(M-2 RF), Hearing Transcript. He then issued a remand initial decision that

affirmed the appellant’s removal. M-2 RF, Tab 9, Remand Initial Decision

The administrative judge dismissed the remanded chapter 75 appeal without prejudice

to accommodate scheduling delays, which resulted in two docket numbers for the one

matter. Kammunkun v. Department of Defense, MSPB Docket No. SF-0752-17-0667-

M-1, Remand File, Tab 55; Kammunkun v. Department of Defense, MSPB Docket No.

SF-0752-17-0667-M-2, Refiled Remand File, Tab 1.

(RID). Among other things, this decision rejected the appellant’s various claims

of due process violations. RID at 69-86.

The appellant has filed a petition for review. Kammunkun v. Department of

Defense, MSPB Docket No. SF-0752-17-0667-M-2, Petition for Review (PFR)

File, Tab 1. In her petition, the appellant exclusively challenges just one aspect

of the remand initial decision—the administrative judge’s findings regarding due

process requirements as they relate to an impartial deciding official. Id. at 4-26

(referencing RID at 74-85). The agency has filed a response, to which the

appellant has replied. PFR File, Tabs 3-4.

ANALYSIS

Before we turn to the appellant’s discrete arguments about due process, the

only matter she challenges on review, 3 we will provide a brief overview of the

circumstances giving rise to her removal. The appellant held the position of

Supervisory Records and Information Management Specialist for an entity that

was previously known as the Joint POW/MIA Accounting Command but is more

recently named the Defense POW/MIA Accounting Agency (DPAA). IAF,

Tab 21 at 8, Tab 22 at 5. Over the course of a couple of years, the agency

conducted multiple investigations, each of which found that the appellant and

others repeatedly mishandled classified materials. The first was a 2015

investigation about the review and transfer of files to the National Personnel

Records Center, a National Archives and Records Administration (NARA)

facility in St. Louis, Missouri, that is not equipped to store classified materials.

IAF, Tab 18 at 11-21, Tab 22 at 6-8. The second was a 2016 security inquiry

about the improper alteration of classification markings. IAF, Tab 11 at 5-16,

Tab 22 at 9. The third was a 2016 investigation about the transfer and review of

more records to a different NARA facility that cannot store classified materials,

The appellant does not challenge the administrative judge’s findings regarding the

charges, nexus, and penalty. We have reviewed those findings and see no basis to

disturb them.

this time in Riverside, California, along with subsequent actions of the appellant

and others when they traveled to Riverside to review the records again. IAF,

Tab 15 at 9-40, Tab 22 at 10-15. It was this third investigation, the one about

Riverside, that led to the appellant’s removal.

The appellant played a primary role in the initial review of records for the

removal of classified material before their transfer to Riverside, in

December 2015. E.g., IAF, Tab 15 at 11, 55-56. She then led a trip to Riverside

to review the records again, in June 2016, with the help of two contractors. Id.

at 12, 46, 55. One of those contractors submitted a “statement for the record,”

dated July 2016, alleging that the appellant engaged in various improprieties

during their Riverside trip. Id. at 46. Broadly speaking, she alleged that the

appellant removed classified materials they found, improperly shredded them,

replaced them with unclassified documents to fill the gaps, and then lied to

agency officials about this while coaxing the contractors to do the same. Id.

In September 2016, the Acting Director of DPAA—who would later be the

deciding official in the appellant’s removal—initiated an investigation regarding

these allegations. Id. at 43-46. She identified 10 specific matters for the

investigator to consider. Id. at 43-44. The investigator did so and issued a

December 2016 report about the same. Id. at 9-40. The Acting Director then

reviewed the investigator’s evidence and findings before creating a February 2017

memorandum of record, which described her own analysis of the situation. Id.

at 5-8. This memorandum directed the Acting Chief of Staff—who would

become the proposing official in the appellant’s removal—to consider whether

any DPAA employees should be subject to personnel actions. Id. at 7.

In March 2017, the Acting Chief of Staff proposed the appellant’s removal

for (1) lack of candor, (2) failure to carry out written or oral regulations, orders,

rules, procedures, or instructions, (3) mishandling Government documents, and

(4) misuse or abuse of contractor employees. IAF, Tab 16 at 5-10. Each

stemmed from the Riverside matter. Id. at 5-7. After the appellant responded to

the charges, e.g., IAF, Tab 19 at 4-18, the Acting Director, i.e., the deciding

official, sustained all of the charges and the removal, IAF, Tab 21 at 9-28. 4

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

The Acting Director’s involvement in this case prior to her decision to

remove the appellant forms the basis of the appellant’s petition for review. E.g.,

PFR File, Tab 1 at 4-26. The appellant’s argument can be summarized as

follows: the Acting Director ordered the investigation about allegations that she

crafted, she overrode the investigative report to make her own investigatory

findings, and then she instructed another official to consider remedial actions,

which led to the proposed removal that the Acting Director sustained. Id.

According to the appellant, these circumstances are such that the Acting Director

was not an impartial deciding official. Id.

The administrative judge considered but rejected this argument below. RID

at 74-85. Among other things, he found that the Acting Director credibly testified

that she wrote the February 2017 memorandum because the prior report from the

investigator could have been more succinct. RID at 76. He further found that the

appellant was overstating the significance of any differences between the

investigator’s report and the Acting Director’s memorandum. RID at 76-77

(referencing IAF, Tab 15 at 5-8 (Acting Director’s memorandum), 9-40

(investigator’s report)). The administrative judge also rejected the appellant’s

contention that the deciding official essentially required that the proposing

official propose the removal before us, leaving her with no discretion in the

matter. RID at 78-85.

To establish a due process violation based on the identity of the deciding

official, an employee must assert specific allegations indicating that the agency’s

choice of the deciding official made the risk of unfairness to the appellant

The administrative judge found that the agency failed to prove specifications 1 and 3

of its fourth charge, RID at 63, 69, but proved all others for all the charges, RID at 51,

57, 59, 62, 68.

intolerably high. Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶ 12;

Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 9 (2013). However, a

deciding official’s awareness of background information concerning the

appellant, her concurrence in the desirability to take an adverse action, or her

predisposition to impose a severe penalty does not disqualify her from serving as

a deciding official on due process grounds. Lange, 119 M.S.P.R. 625, ¶ 9.

Moreover, a deciding official’s mere knowledge of an employee’s background

does not rise to the level of a due process violation unless “that knowledge is a

basis for the deciding official’s determinations on either the merits of the

underlying charge or the penalty to be imposed.” Id. (quoting Norris v. Securities

& Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012)).

In Dieter, an appellant argued that the deciding official was biased for

several reasons, including her involvement in an investigation that led to the loss

of his ecclesiastical endorsement from an outside entity, which was a condition of

his employment with the agency and formed the basis of his removal. Dieter,

2022 MSPB 32, ¶¶ 2-4, 13. The Board was not persuaded that these

circumstances rose to the level of a due process violation. Id., ¶¶ 13-14.

In Lange, the Board similarly considered a deciding official’s knowledge of

and involvement in an appellant’s pre-removal investigation. Lange,

119 M.S.P.R. 625, ¶ 10. The administrative judge cited several facts to find that

the appellant was denied due process: the deciding official briefed the inspector

general’s office about the agency’s investigation into the appellant’s alleged

misconduct, he added the appellant’s supervisor as a subject of the investigation,

he had the initial responsibility of screening additional allegations of misconduct

that were not included in the appellant’s proposed removal, and he had received a

memorandum regarding the final investigatory report about the appellant’s

conduct. Id., ¶¶ 3-4, 10. The Board, however, disagreed with the administrative

judge. The Board explained that none of those instances of involvement were

relied upon by the deciding official in considering the removal and, together, they

did not illustrate an intolerably high risk of unfairness. Id., ¶ 10.

Once again, it is the appellant’s burden to establish actual bias or an

intolerable risk of unfairness amounting to a due process violation. Martinez v.

Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 10. The administrative judge

found that the appellant failed to meet this burden, and we agree. RID at 74-85.

Although the appellant has cited several cases in her petition for review,

none are particularly supportive of her position. For example, the appellant has

referred us to a couple of cases in which the Board expressed concern about a

deciding official’s involvement in underlying charges. PFR File, Tab 1 at 11-12

(citing Eichner v. U.S. Postal Service, 83 M.S.P.R. 202 (1999); House v. U.S.

Postal Service, 80 M.S.P.R. 138 (1998)). But the Board expressed this concern in

terms of deciding the appropriate penalty. Eichner, 83 M.S.P.R. 202, ¶¶ 19-20;

House, 80 M.S.P.R. 138, ¶¶ 14-15. The Board did not determine that the deciding

officials’ involvement violated employees’ due process rights in those cases.

The appellant states that the Board erred in the Eichner case by treating the

issue as concerning the penalty, rather than due process, and this “would not

happen today, post-Ward, post-Stone.” PFR File, Tab 1 at 12. Though she has

not elaborated, it seems as if the appellant is referencing Ward v. U.S. Postal

Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). But those

decisions establish that a deciding official violates an employee’s due process

rights when he relies upon new and material ex parte information as a basis for

his decisions on the merits of a proposed charge or the penalty to be imposed.

E.g., Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 23. The appellant has not

explained why Ward and Stone would require a different result in Eichner or this

appeal, and we are aware of none. The crux of the appellant’s argument seems to

be that the deciding official knew too much about the circumstances surrounding

the appellant’s misconduct, not that she knew and relied upon new and material

information without the appellant’s knowledge.

In another example, the appellant has referred us to a civil case in which a

judge failed to recuse himself, even though the respondent party facing a

$50 million lawsuit had recently contributed $3 million to the judge’s election.

PFR File, Tab 1 at 9 (referencing Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868, 872, 883-87 (2009)). There, the U.S. Supreme Court found that a

judge violated a petitioner’s due process rights when he failed to recuse himself

from a case against a company whose chairman and principal officer had donated

$3 million to the judge’s campaign while the case was pending in the courts.

Caperton, 556 U.S. at 872, 883-87. The Court reasoned that the facts were

“extreme” and reflected a “serious, objective risk of actual bias.” Id. at 886-87.

That extreme set of facts, though, is unlike the circumstances of this appeal, in

which the deciding official was merely more familiar with the investigation and

charges against the appellant than the appellant may have preferred. Moreover,

Caperton is distinguishable from the facts before us because that case involved

the alleged bias of the judge, whereas this case involves an allegation of bias by

the deciding official, whose decision to take an adverse action against the

appellant for her alleged misconduct is subject to de novo review. See Norris,

675 F.3d at 1355-57 (recognizing that “the Board determines de novo the

underlying facts of the case such as whether the employee engaged in the alleged

misconduct and whether the agency exceeded its authority in determining that the

employee’s misconduct would adversely affect the efficiency of the service”).

The appellant has also suggested that the administrative judge erred by

crediting the testimony of the deciding official because the standard for bias is an

objective one. PFR File, Tab 1 at 13-14. However, the administrative judge did

not exclusively rely on the deciding official’s testimony. He considered and

relied upon all the surrounding circumstances while addressing the appellant’s

claim. RID at 74-85. To the extent that the administrative judge did consider and

rely upon the testimony of the deciding official, the appellant has not presented

any persuasive reason for us to disturb the administrative judge’s conclusion that

the testimony was credible. See Haebe v. Department of Justice, 288 F.3d 1288,

1301 (Fed. Cir. 2002) (providing that the Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so).

The appellant has next described the deciding official as effectively

changing the report of investigation in a number of ways, such that she should not

have been involved in the proposed removal that followed. PFR File, Tab 1

at 16-24 (referencing IAF, Tab 15 at 5-8 (deciding official’s summary of the

investigatory report) 9-40 (full investigatory report)). For example, the appellant

argues that the deciding official concluded that more than two classified

documents were sent to the Riverside facility, when the report of investigation

found the matter undetermined. PFR File, Tab 1 at 17 (referencing IAF, Tab 15

at 5, 21-23). In fact, the report of investigation concluded that it was impossible

to prove whether relevant parties discovered more than 100 classified documents

at the Riverside facility, as had been alleged, since the documents in question

were destroyed, preventing a page-by-page analysis of their classification level.

IAF, Tab 15 at 21, 43. But the report went on to discuss all the surrounding

evidence, both evidence lending credence to the claim that the parties discovered

some number of classified documents and other evidence suggesting the number

was less than originally alleged. Id. at 21-23. The deciding official’s subsequent

memorandum indicated that the parties “discovered an unknown number, but

more than two, classified documents” at Riverside. Id. at 5.

Other ways in which the appellant asserts that the deciding official

effectively changed the report of investigation include conclusions about the

appellant directing contractors to replace removed classified documents with

unclassified documents, PFR File, Tab 1 at 17-18, the appellant’s role in the

purchase and use of an unapproved commercial shredder, id. at 18-19, the

appellant instructing contractor employees to state “if asked” that only two

classified documents were found, which she “knew to be untrue,” suggesting

higher culpability, id. at 19-20, the appellant being one of two individuals who

instructed the contractor employees to refer to the contracting officer’s

representative anyone who asked about the documents search, id. at 20-21, and

the appellant creating in the mind of a contractor employee the perception that the

appellant could end her job if she did not do what the appellant directed her to do,

and conveying to contractor employees that they were to shield the appellant if

she did something wrong, id. at 22-24. The appellant further argues that the

deciding official made additional “gratuitous findings” that the appellant

destroyed classified documents and made false statements about doing so. Id.

at 24-25.

As previously noted, the administrative judge found that the appellant

overstated the significance of any differences between the investigator’s report

and the memorandum of the individual who was both Acting Director and the

deciding official. RID at 76-77. We agree. The deciding official’s conclusions,

as stated in her memorandum, are supported by the report of investigation.

Turning back to the example described above to illustrate, the contractor that first

alerted the agency of the improprieties surrounding the Riverside trip alleged that

she and the others involved found around 100 classified documents, despite the

appellant representing that they found only 2. IAF, Tab 15 at 46. The

investigator concluded that this was “undetermined,” because “[s]ubstantiating

this allegation requires disproving a negative,” which was “impossible” because

the documents at issue were destroyed. Id. at 21. Nevertheless, the investigator

went on to note that although the appellant was supposed to have removed all

classified documents before they were sent to Riverside, the contractor’s

allegation was plausible, in part because the appellant’s “prior incidents involving

the mishandling of classified information undermine any claims of [the

appellant’s] competence.” Id. He further described why those who claimed to

have found around 100 classified documents were more credible than the

appellant and one other official who were also on the Riverside trip. Id. at 21-23.

In her subsequent memorandum, the deciding official seems to have felt less

bound by the absence of the now-destroyed documents. She stated that the

parties found some unknown number of classified documents during the Riverside

trip, more than the two alleged by the appellant, id. at 5, and we agree that the

investigatory report supports that conclusion. To further illustrate, the

appellant’s next claim of the deciding official altering the investigatory report is

even less convincing. PFR File, Tab 1 at 17-18. The investigatory report

indicates that the appellant directed two others to search for classified documents,

remove them, and manipulate those that remained to make it appear as if none had

been removed. IAF, Tab 15 at 23. The subsequent memorandum of the deciding

official concludes similarly. Id. at 5. In her petition, the appellant suggests that

there is some meaningful distinction between the language of these two

conclusions, but we find none. PFR File, Tab 1 at 17-18.

Broadly speaking, we recognize that the appellant has described the

deciding official as having an extensive role in the investigation of the appellant’s

alleged misconduct. E.g., id. at 15-16. We disagree, however, with the

appellant’s assertions about the resulting risk of unfairness. Once more, the

Acting Director of DPAA—who would later be the deciding official in the

appellant’s removal—initiated an investigation after receiving specific allegations

of wrongdoing. IAF, Tab 15 at 43-46. She identified 10 specific matters for the

investigator to consider. Id. at 43-44. The investigator did so and issued a

lengthy report about the same. Id. at 9-40. He enclosed hundreds of pages of

evidence. IAF, Tabs 12-14, Tab 15 at 41-93. The Acting Director then reviewed

the investigator’s evidence and findings before creating a memorandum of record,

which described her own analysis of the situation. IAF, Tab 15 at 5-8. This

memorandum ordered several remedial actions pertaining to classified materials

and directed the Acting Chief of Staff—who would become the proposing official

in the appellant’s removal—to consider whether any DPAA employees should be

subject to personnel actions. Id. at 7. Although the memorandum did conclude

that allegations of wrongdoing on the part of the appellant and others were

substantiated, it did not order the proposing official to initiate any particular

adverse action for any employee. To the contrary, the proposing official testified

that it was up to him to determine what, if any, discipline should be proposed, and

the administrative judge found that testimony credible. RID at 80-84. Even

assuming the deciding official influenced the proposing official’s actions, we

discern no error. The same individual may act as the proposing and deciding

official in a chapter 75 proceeding. Hidalgo v. Department of Justice,

93 M.S.P.R. 645, ¶ 16 (2003). These are not circumstances in which the agency’s

choice of the deciding official made the risk of unfairness to the appellant

intolerably high. Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5

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

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.

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

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

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

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

competent jurisdiction. 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).

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.

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