Opinion

Adetayo Agboke v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 17, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ADETAYO AGBOKE, DOCKET NUMBER

Appellant, SF-1221-18-0106-W-1

DEPARTMENT OF JUSTICE, DATE: April 17, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adetayo Agboke , Long Beach, California, pro se.

Gregory Baruch , Esquire, Paul W. Bridenhagen , Esquire, and Sarah Bishop ,

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

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add

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 Parties may cite nonprecedential orders,

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

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

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

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

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

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

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

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

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

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

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

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

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

clarify that the appellant’s claims arising from Complaint 1 (MA-17-2480) with

the Office of Special Counsel (OSC) are dismissed as untimely filed, we AFFIRM

the initial decision.

BACKGROUND

OSC complaints.

The appellant was an Auditor (Bankruptcy), GS-0511-14, in the Los

Angeles office within Region 16 of the U.S. Trustee Program (USTP). Initial

Appeal File (IAF), Tab 1 at 7. His immediate supervisor was the Assistant U.S.

Trustee (AUST) for the Los Angeles Office, and his second-level supervisor was

the U.S. Trustee (UST) for Region 16. IAF, Tab 15 at 4.

During the period at issue in this appeal, the appellant filed four complaints

with OSC. In Complaint 1 (MA-17-2480), the appellant claimed that the agency

retaliated against him for filing a June 17, 2016 grievance in which he contended

that the AUST had used false information to determine his 2015-2016

performance appraisal rating. IAF, Tab 20 at 7, Tab 23 at 113-17. He alleged

before OSC that, since the filing of the grievance, the AUST had engaged in

racist and biased behavior, blamed him for her own errors, used abusive language,

and applied rules unevenly. IAF, Tab 20 at 7. The appellant also referred to the

agency’s denial of his request for situational telework and a February 22, 2017

letter of reprimand (LOR) issued by the UST. Id.; IAF, Tab 6 at 45-48.

On June 8, 2017, OSC notified the appellant of its final determination to close its

file. IAF, Tab 20 at 6.

In Complaint 2 (MA-17-5458), the appellant claimed that the agency’s

August 30, 2017 proposal to suspend him for 7 days 2 was in retaliation for,

among other things, an August 29, 2017 equal employment opportunity (EEO)

complaint. IAF, Tab 6 at 54-59, Tab 20 at 24-31. He stated that, on August 3,

2017, he advised the AUST and the UST of ongoing discrimination and bias on

the part of the AUST, and that, on August 29, 2017, he told the AUST and UST

that he “would not be acquiescing to any discriminatory employment practices.”

IAF, Tab 20 at 27, 29. According to the appellant, the UST then came to his

office, physically blocked him from leaving, and insisted on discussing the

allegations. Id. at 28-29. The appellant further related that, on August 29, 2017,

following the meeting with the UST, he notified the director of USTP of his

intent to file an EEO complaint, and also contacted the agency’s EEO office. Id.

He asserted that the notice of proposed suspension, which the UST issued the

following day, was part of a “pattern and practice of retaliation,” and that the

notice improperly referenced the LOR—which, according to the appellant, had

been rescinded as a result of his March 9, 2017 grievance contesting the LOR.

Id.; IAF, Tab 16 at 85-87. The appellant further stated that, on April 20, 2017,

he advised the AUST that his performance rating for 2015-2016 was based on

incorrect information, and he alleged that the proposed suspension was “part of a

retaliation pattern” for filing the June 17, 2016 grievance of that performance

In the proposed suspension, the agency alleged that, on or about August 9, 2017, the

appellant engaged in unprofessional conduct during an email exchange with the AUST

in which the appellant refused her request to place an email into the trustee file.

IAF, Tab 6 at 54-55, Tab 16 at 10-13. The proposal also alleged that, on

August 2, 2017, the appellant engaged in another unprofessional email exchange with

the AUST concerning her request that he refrain from sending emails to employees of a

law firm representing the debtor in a particular case. IAF, Tab 6 at 55-56, Tab 16

at 14-35.

rating. IAF, Tab 20 at 28-29. He also referred to communications with the

AUST and the UST in which he told them that he would not be “subject to rules

exclusively applied to [him],” and that he would not perform duties outside his

job description, in particular, a request by the AUST to file an email. Id.

In a September 28, 2017 email, OSC informed the appellant that the case

had been closed because OSC defers claims of race discrimination to the EEO

process. Id. at 23. The appellant objected that his complaint was not based

entirely on alleged discrimination, and, later that day, OSC agreed to open a new

complaint (Complaint 3) to investigate his allegations that the proposed

suspension was the result of retaliation for his protected grievance activity.

Id. at 32-37. The appellant states that he did not receive a formal closure letter

for Complaint 2. Petition for Review (PFR) File, Tab 1 at 6.

Complaint 3 was assigned case number MA-17-5869. IAF, Tab 20 at 38.

On November 14, 2017, OSC notified the appellant that it had terminated its

inquiry into Complaint 3 and advised him of his right to seek corrective action

with the Board. Id. at 38-40. In the closure letter, OSC clarified that the

appellant had alleged that the agency issued the August 30, 2017 notice of

proposed suspension in retaliation for the grievances he filed on June 17, 2016,

and March 9, 2017. Id. at 38.

In Complaint 4 (MA-18-1924), filed on December 22, 2017, the appellant

raised new claims of whistleblowing reprisal. Id. at 42-55. Specifically, he

alleged that he made protected disclosures when (1) on August 24, 2017, he

disclosed to the UST that a trial attorney in USTP improperly closed a case

despite evidence of bankruptcy fraud; and (2) on November 20, 2017, he reported

to the agency’s Office of Inspector General that the UST failed to properly handle

evidence of bankruptcy fraud. Id. at 49. He alleged that the agency retaliated

against him for those disclosures when (1) on December 15, 2017, it denied him

access to his office and forced him to telework indefinitely; and (2) on

December 17, 2017, it issued a Standard Form 50 reflecting a 7-day suspension

when the decision to suspend him was not yet final. Id. at 46. It is unclear if or

when OSC terminated its investigation into Complaint 4, and the appellant states

that he does not intend that complaint to serve as basis for his appeal. PFR File,

Tab 1 at 4-6.

Board proceedings.

On November 26, 2017, prior to the filing of Complaint 4, the appellant

filed the instant IRA appeal. IAF, Tab 1. The administrative judge issued an

order advising the appellant of the applicable standards and burdens of proof and

providing him an opportunity to submit evidence and argument establishing

jurisdiction over his appeal. IAF, Tab 3. The appellant filed a response, but did

not at that time provide evidence that he had exhausted the OSC complaint

process. IAF, Tab 6. The agency moved to dismiss the appeal for lack of

jurisdiction. IAF, Tab 15. The administrative judge then issued a second

jurisdictional order, providing the appellant an opportunity to demonstrate that he

had exhausted his remedies with OSC. IAF, Tab 19. In response, the appellant

submitted documents relating to all four OSC complaints. IAF, Tab 20.

On March 22, 2018, the administrative judge issued another order, advising

the appellant that Complaint 1 appeared to be untimely, as he had received a

closure letter for that complaint on June 8, 2017, more than 65 days before the

IRA appeal was filed. IAF, Tab 20 at 6, Tab 21. The administrative judge also

ruled that the appellant had not as yet exhausted his remedies with respect to

Complaint 4, which was still open with OSC and less than 120 days old, and that

she would not consider the matters raised in that complaint as part of the pending

IRA appeal. IAF, Tab 21. The administrative judge provided the parties

additional time to respond to the issue and noted that the record on timeliness

would close on April 30, 2018. Id. Both parties responded to the order. IAF,

Tabs 21-28, 30-43.

On June 1, 2018, the administrative judge issued an initial decision

dismissing the appeal without a hearing. IAF, Tab 45, Initial Decision (ID).

Regarding Complaint 1, she found that the appellant had failed to timely seek

corrective action with the Board. ID at 9-10. Regarding Complaints 2 and 3, the

administrative judge found that the appellant exhausted his remedy with OSC

concerning his allegation that the June 17, 2016 and March 9, 2017 grievances

were a contributing factor in the August 30, 2017 notice of proposed suspension.

ID at 12. However, the administrative judge found that the appellant failed to

make a nonfrivolous allegation that he made a protected disclosure under

5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)

(9)(A)(i). ID at 12-17. Finally, the administrative judge found that the appellant

had not as yet exhausted his remedies with respect to Complaint 4, but advised

him that, if he wished to file an IRA appeal based on Complaint 4, he could do so

within 65 days of receipt of a closure letter from OSC, or after 120 days had

elapsed since he initiated the complaint. ID at 17-18. Accordingly, the

administrative judge dismissed the appeal without a hearing. ID at 1, 18-19.

On petition for review, the appellant argues that the administrative judge

failed to consider his performance record; that she erred in treating Complaint 4

as a basis for his appeal; that she did not consider evidence and argument

concerning the closure of Complaint 2 and the opening of Complaint 3, and

erroneously referenced a closure letter in Complaint 2 that was never issued; that

the agency’s response to the jurisdictional order was late; that the administrative

judge failed to consider evidence that the agency committed harmful error and

denied him due process when it considered the ROI as prior discipline in

proposing the 7-day suspension; that she erred in finding that his disclosures of

alleged wrongdoing by the AUST and the UST were not protected; that he made

protected disclosures that trial attorneys violated 28 U.S.C. § 586(f)(2)(B) in

failing to act on evidence of bankruptcy fraud; and that the agency engaged in

additional unlawful conduct subsequent to the initial decision. PFR File, Tab 1

at 4-15. The agency has filed a response, to which the appellant has replied. PFR

File, Tabs 6-7.

ANALYSIS

The appellant’s claims arising from Complaint 1 are dismissed as untimely filed.

Under 5 U.S.C. § 1214(a)(3)(A), if OSC notifies an appellant that its

investigation into a complaint of whistleblowing reprisal has been terminated, he

may file an IRA appeal with the Board provided that no more than 60 days have

elapsed since notice of the termination was provided. Under the Board’s

regulations implementing that statutory time limit, an IRA appeal must be filed

no later than 65 days after the date that OSC’s written notice of termination is

issued or, if the appellant shows that the notification was received more than

5 days after the date of issuance, within 60 days after receipt of the notice.

5 C.F.R. § 1209.5(a)(1). In this case, OSC issued its closure letter for

Complaint 1 on June 8, 2017, and the appellant has not alleged that he received it

more than 5 days later. IAF, Tab 20 at 6. Consequently, the deadline for filing

an IRA appeal based on the claims at issue in Complaint 1 was August 14, 2017.

See 5 C.F.R. § 1201.23 (providing that, if the day that would ordinarily be the last

day for filing falls on a weekend or holiday, the filing period will include the first

workday after that date). The appellant filed the instant appeal on

November 26, 2017, more than 3 months after the deadline. IAF, Tab 1.

Unlike the Board’s regulatory time limits for appeals filed under 5 U.S.C.

§ 7701, the statutory time limit for filing an IRA appeal cannot be waived for

good cause shown because there is no statutory mechanism for doing so.

See Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 9 (2014).

However, the filing deadline may be subject to equitable tolling, in which the

filing period is suspended for equitable reasons, such as when the complainant

has actively pursued his judicial remedies by filing a defective pleading within

the statutory period, or when he has been induced or tricked by his adversary’s

misconduct into allowing the deadline to pass. Id., ¶ 10; see 5 C.F.R.

§ 1209.5(b). Equitable tolling is a rare remedy that is to be applied in unusual

circumstances and generally requires a showing that the litigant has been

pursuing his rights diligently and some extraordinary circumstances stood in his

way. Heimberger, 121 M.S.P.R. 10, ¶ 10.

In her March 22, 2018 show cause order on timeliness, the administrative

judge did not mention the doctrine of equitable tolling. IAF, Tab 21.

However, the agency did raise the equitable tolling issue and describe the

applicable legal framework in its April 30, 2018 response to the order.

IAF, Tab 29 at 5-7. This was sufficient to put the appellant on notice of the

doctrine of equitable tolling and the circumstances in which it applies. Cf. Yost v.

Department of Health and Human Services, 85 M.S.P.R. 273, 277 (2000)

(holding that an administrative judge’s failure to provide notice of jurisdictional

requirements may not be prejudicial if the agency’s motion to dismiss places the

appellant on notice of what he has to allege to establish jurisdiction), aff’d, 4 F.

App’x 900 (Fed. Cir. 2001). Although the record on timeliness was scheduled to

expire that same day, IAF, Tab 21 at 2, the appellant continued to file

supplemental responses to the March 22, 2018 order, IAF, Tabs 30-43, and the

administrative judge considered those responses, ID at 7 n.2. Under these

circumstances, we find that the appellant received a fair opportunity to present

evidence and argument in support of equitable tolling.

In his responses to the timeliness order, the appellant alleged that, during

the period between the June 8, 2017 closure letter for Complaint 1 and the

August 14, 2017 deadline, the agency engaged in misconduct that affected his

ability to timely file an IRA appeal. IAF, Tab 22 at 6. In particular, he asserted

that the misconduct involved retaliation for his disclosure of bankruptcy fraud in

a particular case. Id. at 6-7; IAF, Tab 30 at 5. Although the administrative judge

did not explicitly refer to the doctrine of equitable tolling in the initial decision,

we agree with her finding that the appellant failed to explain how alleged

misconduct would have prevented him from meeting the August 14, 2017

deadline. ID at 10. In other words, the appellant has not shown that there were

circumstances, extraordinary or otherwise, that stood in the way of his filing a

timely appeal. Consequently, we find that the doctrine of equitable tolling does

not operate to extend the filing deadline, and we affirm the dismissal of the

claims raised in Complaint 1.

We note, however, that the initial decision contains language suggesting

that the entire appeal was dismissed for lack of jurisdiction. ID at 1, 18-19. With

respect to the claims arising from Complaint 1, the correct disposition is to

dismiss those claims as untimely filed, without reaching the jurisdictional issue.

See Heimberger, 121 M.S.P.R. 10, ¶ 13. We modify the initial decision

accordingly.

The administrative judge correctly dismissed the claims raised in Complaints 2

and 3 for lack of jurisdiction.

To establish jurisdiction over an IRA appeal, an appellant must show that

he exhausted his administrative remedies before OSC and make nonfrivolous

allegations that (1) he made a protected disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)

(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a

contributing factor in the agency’s decision to take or fail to take a personnel

action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1).

Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a

hearing on the merits of his claim. Salerno, 123 M.S.P.R. 230, ¶ 5. The Board’s

jurisdiction in an IRA appeal is limited to issues raised before OSC. Ellison v.

Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993). Given our

finding on timeliness as to Complaint 1, and the appellant’s insistence that

Complaint 4 is not a basis for this appeal, we consider only those claims that were

raised in Complaints 2 and 3.

We agree with the administrative judge that, with respect to the claims

raised in Complaints 2 and 3, the appellant did not make a nonfrivolous allegation

of a protected disclosure. Protected disclosures include any disclosure of

information that the employee reasonably believes evidences a violation of any

law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse

of authority; or a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8). A nonfrivolous allegation of a protected disclosure is an

allegation of facts that, if proven, would show that the appellant disclosed a

matter that a reasonable person in his position would believe evidenced a type of

wrongdoing specified under 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230,

¶ 6. The test for determining whether an employee had a reasonable belief that

his disclosures revealed a type of wrongdoing listed under 5 U.S.C. § 2302(b)(8)

is to inquire whether a disinterested observer with knowledge of the essential

facts known to and readily ascertainable by the employee could reasonably

conclude that the actions of the Government evidence such wrongdoing. Id.

As the appellant correctly observes, the fact that an individual has engaged

in activity under 5 U.S.C. § 2032(b)(9), such as filing a grievance or EEO

complaint, does not preclude him from raising a claim under 5 U.S.C. § 2302(b)

(8) if he made disclosures based on the same operative facts outside the (b)(9)

activity. Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 10 (2000). Here,

the appellant appears to have alleged that he made protected disclosures outside

his grievance and EEO activity. IAF, Tab 20 at 27-29. Nonetheless, we agree

with the administrative judge that the appellant failed to nonfrivolously allege

that the disclosures he identified in Complaint 2 were protected. 3

First, to the extent the appellant claims to have disclosed to the AUST,

UST, and higher management that the AUST discriminated against him based on

his race, alleged disclosures that an agency engaged in discrimination and created

a hostile work environment in violation of Title VII are excluded from coverage

under 5 U.S.C. § 2302(b)(8). McDonnell v. Department of Agriculture,

108 M.S.P.R. 443, ¶ 22 (2008); see Edwards v. Department of Labor, 2022 MSPB

Complaint 3 does not appear to allege retaliation for disclosures made outside the

appellant’s grievance activity. IAF, Tab 20 at 38.

9, ¶¶ 21-23 (clarifying that the Whistleblower Protection Enhancement Act of

2012 did not expand the scope of § 2302(b)(8) to include Title VII claims),

aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). As to the

remaining alleged disclosures, the appellant appears to allege that he disclosed an

abuse of authority on the part of the AUST. An abuse of authority occurs when

there is an arbitrary or capricious exercise of power by a Federal official or

employee that adversely affects the rights of any person or results in personal

gain or advantage to himself or preferred other persons. Herman v. Department

of Justice, 115 M.S.P.R. 386, ¶ 11 (2011). For example, the Board has held that

a supervisor’s use of his influence to denigrate other staff members in an abusive

manner and threaten the careers of staff members with whom he disagrees

constitutes an abuse of authority. Id. With regard to the appellant’s assertions

that the AUST based his performance rating on erroneous information and

improperly asked him to file an email, we find that the appellant failed to allege

facts that, if proven, would show that a reasonable person would find that the

AUST’s actions evidenced such an arbitrary or capricious exercise of power, or

any other type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). Finally, the

appellant’s alleged disclosure that he had been “subjected to rules exclusively

applied to [him],” IAF, Tab 20 at 28, is too vague to constitute a nonfrivolous

allegation of a protected disclosure, see Rzucidlo v. Department of the Army,

101 M.S.P.R. 616, ¶ 17 (2006).

We also agree with the administrative judge that, with respect to the issues

exhausted in Complaints 2 and 3, the appellant failed to make a nonfrivolous

allegation that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),

(B), (C), or (D). The appellant’s grievances and EEO complaint constitute

protected activity under 5 U.S.C. § 2302(b)(9)(A), which generally protects the

exercise of any appeal, complaint, or grievance right granted by any law, rule, or

regulation. However, such activity falls within the scope of § 2302(b)(9)(A)(i)

only if it is “with regard to remedying a violation of paragraph (8).” In other

words, the substance of the appeal, complaint, or grievance must itself concern a

claim of retaliation for disclosures protected under § 2302(b)(8). See Mudd v.

Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). Here, neither of

the appellant’s grievances involves a claim that he made a protected disclosure

that was a contributing factor in a personnel action. IAF, Tab 6 at 116-18, Tab 16

at 76-78. Nor has the appellant alleged that he raised a claim of whistleblowing

reprisal in his EEO complaint. Because the appellant’s grievances and EEO

complaint did not seek to remedy a violation of § 2302(b)(8), they constitute

protected activity under § 2302(b)(9)(A)(ii), not § 2302(b)(9)(A)(i). As such,

they do not support a finding of IRA jurisdiction. See Mudd, 120 M.S.P.R. 365,

¶ 7.

The evidence submitted with the appellant’s petition does not provide a basis for

further review.

In support of his petition, the appellant has attached approximately 800

pages of supporting exhibits. PFR File, Tab 1 at 16-321, Tabs 2-4. We note that

it is not the Board’s obligation to pore through the record to construe and make

sense of allegations set forth at various parts of an extremely voluminous case

file. See Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶18 n.2 (2002)

(citing Embry v. Department of Transportation, 13 M.S.P.R. 505, 507 (1982)).

Nonetheless, we have examined the exhibits and find that they do not contain new

and material evidence that would warrant further review. With regard to the

documents that predate the close of the record on jurisdiction (March 9, 2018)

and timeliness (April 30, 2018), we find that they do not qualify as new evidence

because (1) the information contained therein is duplicative of submissions

already contained in the record, see Grassell v. Department of Transportation,

40 M.S.P.R. 554, 564 (1989); or (2) the appellant has not shown that the

information was unavailable before the close of the record despite his due

diligence, see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To

the extent that documents postdating the close of the record contain new

information, this information concerns events that took place after the Board

appeal was filed. Those matters could not have been exhausted in Complaints 2

or 3, nor could they have affected the timeliness of the appeal with respect to

Complaint 1. As to Complaint 4, the appellant vehemently insists that his appeal

is not based on that complaint. 4 PFR File, Tab 1 at 4-6. Thus, to the extent the

appellant’s evidence is new, it is not material to the outcome of this case. 5 See

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).

NOTICE OF APPEAL RIGHTS 6

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.

The appellant may file a separate IRA appeal based on Complaint 4 consistent with the

Board’s regulations and the applicable statutes. We make no finding here as to the

timeliness of such an appeal.

We have considered the appellant’s remaining arguments and find they are either

without merit or outside the scope of this appeal.

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.

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. 7 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