Opinion

Michelle Gilewicz v. Department of Homeland Security

2024 MSPB 7

Court: Merit Systems Protection Board
Filed: Apr 9, 2024
Status: Published
Cited by: 4 cases
Authority: More cited than 74.8%

finding that, to achieve consistency with the amount of nonpecuniary compensatory damages awarded in similar cases, it is appropriate to consider EEOC decisions that present similar factual scenarios

How later courts described this case

finding that, to achieve consistency with the amount of nonpecuniary compensatory damages awarded in similar cases, it is appropriate to consider EEOC decisions that present similar factual scenarios

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 7

Docket Nos. DE-1221-20-0091-P-1

DE-1221-20-0091-P-2

Michelle Gilewicz,

Appellant,

Department of Homeland Security,

Agency.

April 9, 2024

Michelle Gilewicz , Wichita, Kansas, pro se.

John F. Dymond , Esquire, North Charleston, South Carolina,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

OPINION AND ORDER

¶1 The agency has filed a petition for review of the addendum initial decision,

which awarded the appellant $100,000 in compensatory damages and $6,169.75 in

consequential damages. For the reasons discussed below, we GRANT the

agency’s petition for review, VACATE the compensatory damages award, and

REMAND the compensatory damages proceeding to the Denver Field Office for

further adjudication in accordance with this Opinion and Order. We AFFIRM the

consequential damages award.

BACKGROUND

¶2 On December 3, 2019, the appellant filed an individual right of action (IRA)

appeal alleging that, among other things, she was subjected to a hostile work

environment because of her protected disclosures and protected activities.

Gilewicz v. Department of Homeland Security, MSPB Docket No. DE-1221-20-

0091-W-1, Initial Appeal File (IAF), Tab 1. After holding a hearing, the

administrative judge issued an initial decision granting in part the appellant’s

request for corrective action. IAF, Tab 77, Initial Decision (ID) at 1-2. The

administrative judge found that the appellant was entitled to corrective action

regarding her claim that she was subjected to a hostile work environment 1 while

employed as an Immigration Officer in the agency’s Philadelphia Field Office

because of her protected disclosures concerning an Immigration Analyst being

improperly issued an Immigration Officer’s badge and performing work outside

of the scope of her job duties, including conducting site visits. ID at 6-9, 14-17.

However, the administrative judge denied corrective action regarding the

appellant’s claims that, because of her protected disclosures and protected

activity, the agency subjected her to a hostile work environment in the Wichita

Field Office, did not select her for several positions, and gave her a negative job

reference. ID at 17-20. Neither party filed a petition for review of the initial

decision, which became the Board’s final decision.

¶3 On November 5, 2020, the appellant filed a motion for damages, which the

administrative judge docketed as two separate addendum proceedings: (1) a

consequential damages proceeding, Gilewicz v. Department of Homeland

Security, MSPB Docket No. DE-1221-20-0091-P-1, Appeal File (P-1 AF), Tab 1;

and (2) a compensatory damages proceeding, Gilewicz v. Department of

Homeland Security, MSPB Docket No. DE-1221-20-0091-P-2, Appeal File

Allegations of a hostile work environment may establish a personnel action under

5 U.S.C. § 2302(a)(2)(A) if they meet the statutory criteria, i.e., constitute a significant

change in duties, responsibilities, or working conditions. Skarada v. Department of

Veterans Affairs, 2022 MSPB 17, ¶ 16.

(P-2 AF), Tab 1. 2 The appellant sought $300,000 in nonpecuniary compensatory

damages and $6,169.75 in consequential damages for the cost of a forensic

economic analysis. 3 P-2 AF, Tab 1 at 6. The administrative judge issued a single

addendum initial decision based on the written record, awarding the appellant

$100,000 in nonpecuniary compensatory damages and $6,169.75 in consequential

damages. P-1 AF, Tab 9, Addendum Initial Decision (AID) at 8-21, 23; P-2 AF,

Tab 8, AID at 8-21, 23.

¶4 The agency has filed a petition for review listing both docket numbers and

asserting that the compensatory damages awarded are excessive. 4 Petition for

Review (PFR) File, Tab 3. The Office of the Clerk of the Board processed the

agency’s pleading as a petition for review in both addendum proceedings. 5 PFR

File, Tab 4 at 1 n.*. The appellant has not responded to the agency’s petition.

ANALYSIS

¶5 As the prevailing party in a Board appeal in which the administrative judge

ordered corrective action based upon a finding of whistleblower reprisal, the

appellant is entitled to an award of “backpay and related benefits, medical costs

incurred, travel expenses, any other reasonable and foreseeable consequential

damages, and compensatory damages (including interest, reasonable expert

witness fees, and costs).” 5 U.S.C. § 1221(g)(1)(A)(ii); see King v. Department

of the Air Force, 122 M.S.P.R. 531, ¶ 7 & n.3 (2015). Compensatory damages

To reduce citation clutter, we will generally only cite to the P-2 files when items

appear in both files.

The appellant also requested various other forms of relief, which the administrative

judge denied. P-2 AF, Tab 1 at 5-6, Tab 8, Addendum Initial Decision at 5-7, 21-23.

The appellant has not filed a cross petition for review challenging the administrative

judge’s findings in this regard.

The agency does not present any discernable challenge to the administrative judge’s

award of consequential damages.

To this point, there has not been an explicit order joining the appeals, although they

have been treated as such without objection from either party. We expressly do so now

because it would expedite processing without adversely affecting the interests of the

parties. See 5 C.F.R. § 1201.36.

include pecuniary losses and nonpecuniary losses, such as emotional pain,

suffering, inconvenience, mental anguish, and loss of enjoyment of life. Hickey v.

Department of Homeland Security, 766 F. App’x 970, 976-77 (Fed. Cir. 2019); 6

5 C.F.R. §§ 1201.201(d), 1201.202(c). Compensatory damages are designed to

compensate the appellant for actual harm, not to punish the agency. Hickey,

766 F. App’x at 977.

We clarify that it is appropriate for the Board to consider cases and guidance

from the Equal Employment Opportunity Commission (EEOC) as persuasive

authority in adjudicating compensatory damages pursuant to 5 U.S.C. § 1221(g).

¶6 Here, in assessing the appellant’s claim of compensatory damages, the

administrative judge noted that there was limited precedent from the U.S. Court

of Appeals for the Federal Circuit. 7 AID at 12. We agree that case law regarding

compensatory damages in whistleblower reprisal cases is underdeveloped; indeed,

the Board has yet to issue a precedential decision substantively addressing such

damages. 8 The Board has, however, addressed compensatory damages in another

context, i.e., as authorized by section 102 of the Civil Rights Act of 1991

(42 U.S.C. § 1981a). E.g., Edwards v. Department of Transportation,

117 M.S.P.R. 222, ¶¶ 9-10, 27 (2012); see 5 C.F.R. § 1201.202(c). In this

context, the Board has adopted the EEOC’s criteria for proving both the

The Board may follow a nonprecedential decision of a court when, as here, it finds the

reasoning persuasive. Edwards v. Department of Labor, 2022 MSPB 9, ¶ 16 n.6, aff’d,

No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).

Historically, the Board has not been bound by circuit court decisions other than those

of the Federal Circuit. See Mynard v. Office of Personnel Management, 108 M.S.P.R.

58, ¶ 14 (2008). However, as a result of changes initiated by the Whistleblower

Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 108, 126 Stat. 1465, 1469

(2012), extended for 3 years in the All Circuit Review Extension Act, Pub. L.

No. 113-170, § 2, 128 Stat. 1894 (2014), and eventually made permanent in the All

Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), the appellant may seek

review of the Board’s final decision before any appropriate court of appeal. Edwards,

2022 MSPB 9, ¶ 15 n.5; see 5 U.S.C. § 7703(b)(1)(B).

Compensatory damages in IRA appeals first became available with the December 27,

2012 enactment of the Whistleblower Protection Enhancement Act of 2012. See Hickey,

766 F. App’x at 976 n.6; King, 122 M.S.P.R. 531, ¶ 7 n.3.

entitlement to and the amount of compensatory damages. Edwards, 117 M.S.P.R.

222, ¶ 9.

¶7 We take this opportunity to clarify that, in adjudicating compensatory

damages in whistleblower reprisal cases, it is appropriate to apply the case law

pertaining to compensatory damages in EEOC cases by analogy and to give

persuasive authority to the regulatory guidance of the EEOC as it pertains to

compensatory damages. Accordingly, to receive an award of compensatory

damages pursuant to 5 U.S.C. § 1221(g), an appellant must show that she has

been harmed as a result of the agency’s unlawful retaliatory activities and must

establish the extent, nature, and severity of the harm, as well as the duration or

expected duration of the harm. See id., ¶ 10 (stating that, to receive an award of

compensatory damages pursuant to section 102 of the Civil Rights Act, an

appellant must demonstrate that she has been harmed as a result of the agency’s

discriminatory action and must establish the extent, nature, and severity of the

harm, as well as the duration or expected duration of the harm); see also Hickey,

766 F. App’x at 978 (noting that Mr. Hickey’s request for compensatory damages

included all of his original claims in his IRA appeal, instead of the three instances

of misconduct for which the Board determined that he was entitled to corrective

action, and concluding that he was only entitled to compensatory damages for

those three instances).

¶8 An award of compensatory damages for nonpecuniary losses should reflect

the extent to which the agency directly or proximately caused the harm and the

extent to which other factors also caused the harm. Hollingsworth v. Department

of Commerce, 117 M.S.P.R. 327, ¶ 13 (2012). A nonpecuniary damages award

should not be “monstrously excessive” standing alone, should not be the product

of passion or prejudice, and should be generally consistent with the amount

awarded in similar cases. Id. (citing Ward-Jenkins v. Department of the Interior,

EEOC Appeal No. 01961483, 1999 WL 139427, at *6 (Mar. 4, 1999)). To

achieve consistency with the amount awarded in similar cases, it is appropriate to

consider EEOC decisions that present similar factual scenarios. E.g., Heffernan

v. Department of Health and Human Services, 107 M.S.P.R. 97, ¶ 13 (2007).

¶9 In so clarifying, however, we caution that the Civil Rights Act limits the

compensatory damages that may be awarded to a complainant for future pecuniary

losses and nonpecuniary losses according to the number of individuals employed

by the respondent employer. 42 U.S.C. § 1981a(b)(3). For an agency with more

than 500 employees, as here, the limit of liability for such damages is $300,000.

42 U.S.C. § 1981a(b)(3)(D); see Nia G. v. Department of Homeland Security,

EEOC Appeal No. 0120160716, 2018 WL 1061871, at *5 (Feb. 6, 2018)

(indicating that, because the Department of Homeland Security has more than 500

employees, the limit of liability for future pecuniary and nonpecuniary damages

was $300,000). No such monetary cap exists for an award issued pursuant to

5 U.S.C. § 1221(g). See Hickey, 766 F. App’x at 976 n.6. Thus, to the extent the

Board considers any decisions, EEOC or otherwise, wherein nonpecuniary

damages have been ordered pursuant to 42 U.S.C. § 1981a, it must remain

cognizant that an award of such damages under 5 U.S.C. § 1221(g) is not capped

and may exceed $300,000.

We remand the compensatory damages issue for further adjudication.

¶10 Turning to the facts of this case, the administrative judge determined that

the appellant was entitled to a partial award of the nonpecuniary compensatory

damages she sought, in the amount of $100,000. AID at 20. The administrative

judge arrived at this amount after considering the appellant’s written statement

and two medical notes and comparing a range of EEOC decisions on

compensatory damages. AID at 8-20. He concluded that the appellant proved

that she became angry, anxious, depressed, fearful, unable to participate in

activities she previously enjoyed, and she contemplated suicide. AID at 13-14.

The administrative judge also determined that the most analogous precedent was

Fivecoat v. Department of the Air Force, EEOC Appeal No. 0720110035,

2012 WL 1893699 (May 15, 2012), which similarly awarded $100,000 in

compensatory damages. AID at 14.

¶11 On review, the agency asserts that the administrative judge erred in

awarding $100,000 in compensatory damages because it was based on an

erroneous finding regarding the total duration of the hostile work environment in

Philadelphia and improperly relied on Fivecoat, which was not an analogous case,

but rather involved more egregious acts by the agency over a longer duration of

time. PFR File, Tab 3 at 13-20. For the reasons set forth below, we find that

remand is necessary for proper assessment of the extent to which the appellant’s

emotional harm was caused by the unlawful retaliatory hostile work environment

in Philadelphia as opposed to emotional distress associated with the litigation

process or the appellant’s unproven claim that she was subjected to a retaliatory

hostile work environment in the agency’s Wichita office.

¶12 The administrative judge granted corrective action regarding the appellant’s

claim that she was subjected to a hostile work environment in the agency’s

Philadelphia office, which the administrative judge found to be “fairly limited in

scope” and based on the following: (1) the appellant’s supervisor failed to

require her colleagues to go out with her on site visits as part of her training,

which adversely affected her development as an Immigration Officer, and told her

to “deal with it”; (2) the appellant’s supervisor gave her a “lower performance

appraisal grade” for the teamwork element, despite his knowledge that her team

members would not work with her; (3) the appellant’s supervisor attempted to

interfere with her work on a high-profile case; and (4) the appellant missed a

training session after her return from deployment because no one told her about it.

ID at 15; AID at 3-5.

¶13 As the agency points out on review, the total duration of the hostile work

environment in Philadelphia appears to have been 9 months, between April 2017,

when the appellant made her protected disclosures, ID at 7 n.7, and April 2018,

when she began reporting to the Potomac Service Station, excluding the

approximately 3 months between September and December 2017, when she was

deployed with the Surge Capacity Force, PFR File, Tab 3 at 14; IAF, Tab 4 at 10,

91, Tab 62 at 87. However, the appellant’s statement in support of her motion for

compensatory damages, the primary evidence of the emotional harm she suffered,

reflects that she attributes her emotional distress to the agency’s treatment of her

over a total period of almost 4.5 years, including many of the original allegations

raised in her appeal for which the administrative judge did not find unlawful

retaliation and did not grant corrective action. P-2 AF, Tab 1. For example, the

administrative judge found that the appellant failed to prove that her alleged

hostile work environment in the Wichita Field Office was due to whistleblower

reprisal. ID at 17-18. Notwithstanding such a finding, the appellant’s statement

in support of her claim for compensatory damages describes emotional distress

caused by the agency’s alleged actions in Wichita. P-2 AF, Tab 1 at 11-12,

14-16, 20 (stating that the environment in Wichita is “significantly worse than the

one in Philadelphia” and “makes Philadelphia seem like a rose garden”).

¶14 In the addendum initial decision, the administrative judge acknowledged

that the appellant claimed damages based on the agency’s treatment of her over a

period of 4.5 years, but he summarily stated without analysis that she “did not

distinguish clearly between the damages caused by whistleblower retaliation and

those caused by the litigation.” AID at 10 & n.6. As a result, it is unclear

whether the administrative judge’s award of compensatory damages improperly

compensated the appellant for emotional distress stemming from litigation.

P-2 AF, Tab 1 at 10-12, 19-20 (referencing her emotional state during or as a

result of the trial); see, e.g., Knussman v. Maryland, 272 F.3d 625, 641-42 (4th

Cir. 2001) (finding that, generally, litigation-induced emotional distress is not a

compensable element of damages). Similarly, it is unclear whether the

administrative judge awarded damages for emotional distress based on the

appellant’s unsuccessful claim that she suffered a hostile work environment in

Wichita. 9 Although the administrative judge stated that he was not awarding

damages for any alleged Wichita hostile work environment, AID at 22, he

considered the appellant’s medical conditions, such as nausea, headaches, stress,

and anxiety, which appear to stem from alleged incidents in Wichita, AID

at 10-11 (stating that the appellant described herself as anxious and depressed as

well as “described how her focus and concentration has been greatly diminished,

and she now feels nauseated and has headaches on a daily basis ‘as this ordeal has

dragged on now for almost four and a half years’”); P-2 AF, Tab 1 at 11-12

(referencing that she now has anxiety as a result of constant questioning from

management in Wichita).

¶15 Although we do not question the sincerity of such conditions, the appellant

has not clearly indicated the dates or duration she suffered from these medical

conditions, rendering it difficult to assess whether they were actually caused by

the agency’s unlawful conduct in Philadelphia, particularly given that her

statement fails to focus solely on the hostile work environment in Philadelphia. 10

See Hickey, 766 F. App’x at 978. In addition to her statement, the appellant also

submitted two 1-page medical documents in support of her claims that she

suffered from anxiety and depression. 11 P-2 AF, Tab 1 at 79-80. An October 8,

In his analysis, the administrative judge properly excluded compensatory damages that

the appellant sought based on her other unproven claims, including her claims that her

coworkers told lies about her and insinuated that she wanted to date a married

coworker, her supervisor gave her a derogatory reference, she was held to a different

standard than other employees, she was assigned more difficult cases, she was publicly

denigrated in an attempt to humiliate her, and she was not promoted. AID

at 9-10 nn. 4-5.

In contrast, the appellant clearly states that she began experiencing insomnia and

depression in Philadelphia as a result of the hostile work environment. P-2 AF, Tab 1

at 5, 10-11.

The appellant also submitted two statements from her siblings, P-2 AF, Tab 4 at 3-4,

which the administrative judge did not consider, AID at 12 (finding that the appellant’s

personal statement and her two medical treatment notes were the only evidence of the

extent, nature, severity, or duration of the appellant’s harm). On remand, the

administrative judge shall consider such statements in assessing the appellant’s request

for compensatory damages.

2020 note from a licensed clinical social worker states that the appellant

presented on that date “with significant anxiety symptoms” that were “negatively

impacting her daily functioning” and that she was also experiencing “depression

symptoms for which she received counseling support from [a] social worker and

therapist.” Id. at 79. In a second note dated October 27, 2020, a mental health

social worker indicated that the appellant had established care on that date for

symptoms of depression and anxiety that were “severely impacting her daily

functioning.” Id. at 80. However, it is not clear whether or to what degree such

conditions are the result of the hostile work environment the appellant

experienced in Philadelphia in 2017-2018 because the medical notes, which are

dated October 8 and 27, 2020, are temporally closer to the appellant’s unproven

claim that she suffered a hostile work environment in Wichita, beginning

January 6, 2019.

¶16 Based on the foregoing, we find it appropriate to remand for reevaluation of

the appropriate amount of compensatory damages for harm actually caused by the

hostile work environment in Philadelphia. Although the administrative judge did

not hold a hearing on damages, he did hold a hearing on the merits of the

appellant’s whistleblowing claims in which he heard testimony and made

credibility findings concerning the Philadelphia hostile work environment. Given

such findings, the administrative judge is in the best position to reevaluate the

evidence and determine the proper amount of compensatory damages based solely

on emotional distress caused by the Philadelphia hostile work environment. Cf.

Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 8 (2006)

(remanding because the administrative judge who decided the case on the merits

was in the best position to judge the reasonableness of the requested attorney

fees).

¶17 On remand, the administrative judge shall issue a new addendum initial

decision that addresses the issues raised herein and evaluates the appellant’s

entitlement to compensatory damages based only on her proven claim that she

was subjected to a hostile work environment in Philadelphia. The administrative

judge, in his discretion, may reopen the record to allow the parties to present

evidence and/or argument regarding the proper amount of compensatory damages

or to hold a hearing on the appellant’s motion for compensatory damages.

ORDER

¶18 For the reasons discussed above, we remand the compensatory damages

matter, Gilewicz v. Department of Homeland Security, MSPB Docket No.

DE-1221-20-0091-P-2, to the Denver Field Office for further adjudication in

accordance with this Opinion and Order.

¶19 We ORDER the agency to pay the appellant $6,169.75 in consequential

damages. The agency must complete this action no later than 20 days after the

date of this decision.

¶20 We ORDER the appellant to cooperate in good faith in the agency’s efforts

to carry out the Board’s Order. We further ORDER the agency to tell the

appellant promptly in writing when it believes it has fully carried out the Board’s

Order and of the actions it took to carry out the Board’s Order. The appellant, if

not notified, should ask the agency about its progress. See 5 C.F.R.

§ 1201.181(b).

¶21 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶22 This is the final decision of the Merit Systems Protection Board regarding

the award of consequential damages in MSPB Docket No. DE-1221-20-0091-P-1.

Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

FOR MSPB DOCKET NO. DE-1221-20-0091-P-1

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS

FOR MSPB DOCKET NO. DE-1221-20-0091-P-1 12

Although the Board is remanding for further adjudication regarding the

compensatory damages award in MSPB Docket No. DE-1221-20-0091-P-2, you

may obtain review of the Board’s final decision regarding the award of

consequential damages in MSPB Docket No. DE-1221-20-0091-P-1. 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

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.

immediately review the law applicable to your claims and carefully follow all

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

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

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 13 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