Opinion

Jeff Louck v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

stating that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

How later courts described this case

stating that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFF LOUCK, DOCKET NUMBER

Appellant, SF-0752-21-0226-I-1

DEPARTMENT OF AGRICULTURE, DATE: April 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeff Louck , San Francisco, California, pro se.

John Montgomery , Esquire, Alexandria, Virginia, 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 as untimely his involuntary resignation appeal. For the reasons

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and DISMISS the appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant held the position of Lead Management Support Specialist

with the Food and Nutrition Service. Initial Appeal File (IAF), Tab 1 at 1, Tab 14

at 28-29. He filed a formal equal employment opportunity (EEO) complaint

alleging discrimination and harassment on the basis of race, sex, and political

affiliation on July 6, 2018. IAF, Tab 11 at 11-23, Tab 14 at 24. The appellant

alleged, in part, that an agency employee had defaced a portrait of President

Trump and that management had not held the individual appropriately

accountable, demonstrating discrimination towards Caucasian males. IAF,

Tab 11 at 11. By letter dated July 10, 2018, the appellant informed agency

management that he would be “resigning” and that his last day would be July 24,

2018. Id. at 28. The agency processed his resignation effective August 4, 2018.

Id. at 29. The appellant amended his EEO complaint on November 14, 2018. Id.

at 20.

On February 28, 2021, the appellant filed the present appeal alleging that

he had been subjected to an involuntary resignation. IAF, Tab 1 at 3. He stated

that he had filed a report with the Office of Inspector General (OIG) about “an

employee who committed a hate speech racist crime and Hatch Act 2 crimes,” but

that OIG had not appropriately punished the individual. Id. at 5. The appellant

stated that the agency “retaliated against [him] by telling [him] to quit or be

fired,” and that “they were not stupid enough to put their ultimatum in writing.”

Id. He maintained that, before he was “forced to quit” in July 2018, he had

received very good performance reviews and had received a cash award only

2 months prior to making his report to the OIG. Id. The appellant submitted a

final agency decision (FAD) dated January 7, 2021, stating that the Equal

Employment Opportunity Commission (EEOC) had issued a summary judgment

decision in favor of the agency. Id. at 7-12.

An Act to Prevent Pernicious Political Activities, Pub. L. No. 76-252, 53 Stat. 1147

(1939) (codified as amended at 5 U.S.C. chapter 73, subchapter III).

In an acknowledgment order, the administrative judge then assigned to the

appeal issued an order on jurisdiction, which provided the appellant proper notice

regarding involuntary resignations and explained that he would be entitled to a

hearing if he made a nonfrivolous allegation that his appeal was within the

Board’s jurisdiction. IAF, Tab 2 at 2-4. The administrative judge also issued an

order on timeliness, notifying the appellant that his appeal appeared to be

untimely filed by 913 days and ordering him to submit evidence and argument

showing that the appeal was timely filed or that good cause existed for the delay.

Id. at 4-7.

The appellant argued that the administrative judge should not be assigned

to his case, given his prior telephonic contact with her in February 2019. IAF,

Tab 5 at 4. At that time, the administrative judge served as Interim EEO Director

for the Board and the appellant had contacted her regarding his allegations

against the agency, “to seek information on two crimes committed by a federal

employee.” IAF, Tab 5 at 5, Tab 6 at 1. He submitted two emails that he had

sent to the Board at that time, complaining about his interaction with the

administrative judge and her purported refusal to assist him. IAF, Tab 5 at 5, 7.

The appellant also submitted a February 2019 email that he received from the

Board instructing him of the Board’s limited jurisdiction and how to file an

appeal. Id. at 6. The Board also informed him that the Office of Special Counsel

(OSC), and not the Board, has the authority to investigate allegations of

prohibited personnel practices and violations of the Hatch Act. Id. at 6. The

chief administrative judge issued a notice informing the parties that the appeal

would be reassigned to another administrative judge because of the prior

telephonic contact about matters related to the appeal. IAF, Tab 6 at 1-2.

The appellant filed several pleadings, which largely concerned the

underlying allegations in his OIG and EEO complaints and his dissatisfaction

with the handling of his case by the EEOC. IAF, Tab 10 at 4-8, Tab 11 at 4-5,

Tab 15 at 4-5, Tab 16 at 4-5, Tab 20 at 4. He also submitted various documents

related to his EEO complaint. IAF, Tab 11 at 6-23, Tab 15 at 6-8. Regarding the

issue of timeliness, the appellant argued that he had raised his involuntary

resignation claim and “tried to file a complaint” with the Board when he spoke to

the administrative judge in February 2019. IAF, Tab 5 at 4, Tab 11 at 4. He

asserted that the administrative judge with whom he spoke had “blocked” him

from filing a complaint during their telephone call. IAF, Tab 10 at 4, Tab 11 at 4.

Finally, regarding the issue of jurisdiction, the appellant asserted that his

involuntary resignation claim fell into the categories of intolerable working

conditions and that the agency threatened a removal that could not be

substantiated. IAF, Tab 5 at 4. He claimed that he had suffered discrimination

and a toxic work environment for over 5 years. IAF, Tab 10 at 4. The appellant

challenged the EEOC decision finding that he had not shown discrimination or a

hostile work environment, when the OIG found that his allegations about the

defacing of President Trump’s portrait were correct. IAF, Tab 10 at 4, Tab 11

at 4-5, Tab 15 at 4, Tab 16 at 4-5, Tab 20 at 4.

The chief administrative judge issued an order reassigning the appeal to

another administrative judge. IAF, Tab 19 at 1. The new administrative judge

issued a notice of close of record, noting that the parties had sufficient time to

make submissions on the timeliness and jurisdiction issues. IAF, Tab 21 at 1.

Without holding the requested hearing, the administrative judge dismissed the

appeal as untimely filed. IAF, Tab 22, Initial Decision (ID) at 1, 9. He found

that the appellant did not establish that he timely filed his appeal, which was not

rendered timely by the agency’s issuance of the FAD because the involuntary

resignation claim was not an accepted issue in the appellant’s EEO complaint. ID

at 3-6. The administrative judge found that the appellant had not shown good

cause for his untimely filing and that his contact with the Board in February 2019,

two years before he filed his appeal, did not demonstrate that he exercised due

diligence or ordinary prudence in pursuing his claim. ID at 7-9. Because he

dismissed the appeal on the grounds of timeliness, the administrative judge did

not reach the issue of jurisdiction. ID at 2 n. 2.

The appellant has filed a lengthy petition for review, challenging the

administrative judge’s findings on timeliness and repeating his complaints against

the Board, his employing agency, and the EEOC’s treatment of his complaint.

Petition for Review (PFR) File, Tab 1 at 4-10. He also submits email

communications between himself and various agency personnel regarding the

underlying allegations in his OIG and EEO complaints. Id. at 11-21. The agency

has filed a response, arguing that the petition for review presents no basis for

overturning the initial decision. PFR File, Tab 5 at 4-5.

The Office of the Clerk of the Board issued a letter to the appellant,

informing him that his petition for review contained multiple violations of the

Board’s Policy on Prohibited Conduct, and outlined “unacceptable conduct” such

as profanity and disparaging language based on race, sex, national origin, and

other protected classes. PFR File, Tab 3 at 1. The letter constituted a warning to

the appellant to refrain from engaging in this behavior or suffer potential

sanctions. Id. at 2. The appellant filed a response to the Board’s “despicable”

letter, arguing that the Board had “harassed” him and denying that he had used

disparaging language. PFR File, Tab 4 at 4-6.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred by deciding the timeliness issue without first

determining whether the Board has jurisdiction over the appeal.

Although the existence of Board jurisdiction is a threshold issue, in an

appropriate case, an administrative judge may dismiss an appeal as untimely filed

if the record on timeliness is sufficiently developed and shows no good cause for

the untimely filing. Hanna v. U.S. Postal Service, 101 M.S.P.R. 461, ¶ 6 (2006).

Such an approach is not appropriate, however, if the jurisdictional and timeliness

issues are inextricably intertwined, such that the resolution of the timeliness issue

depends on whether the appellant was subjected to an appealable action. Id. The

issues of timeliness and jurisdiction are generally considered to be inextricably

intertwined in an involuntary resignation appeal because a failure to inform an

employee of his Board appeal rights may excuse an untimely filed appeal, and

whether the agency was obligated to inform the employee of such appeal rights

depends on whether he was affected by an appealable action. Id.

Here, the administrative judge issued orders on timeliness and jurisdiction

in the acknowledgment order. IAF, Tab 2 at 2-7. However, the administrative

judge did not reach the issue of jurisdiction concerning the appellant’s

involuntary resignation claim in the initial decision. ID at 2 n.2. Because the

issues of timeliness and jurisdiction are inextricably intertwined in this appeal,

the administrative judge should not have dismissed the appeal on timeliness

grounds without first addressing jurisdiction. Brown v. U.S. Postal Service,

115 M.S.P.R. 609, ¶ 8, aff’d per curiam, 469 F. App’x 852 (Fed. Cir. 2011). We

need not remand this appeal, however, because the appellant received proper

jurisdictional notice as to the involuntary resignation claim and he availed

himself of the opportunity to present argument on the jurisdictional issue in

numerous pleadings. IAF, Tab 2 at 2-4, Tab 5 at 4, IAF, Tab 10 at 4, Tab 11

at 4-5, Tab 15 at 4, Tab 16 at 4-5.

The appellant failed to nonfrivolously allege that his resignation was involuntary.

On review, the appellant repeats his assertion that a management official

told him to “quit or be fired” and states that he was subject to disciplinary action.

PFR File, Tab 1 at 5, 10; IAF, Tab 1 at 5, Tab 8 at 4, Tab 10 at 4. He also repeats

his claims that his working conditions were so intolerable due to discrimination

as a “legal U.S. citizen Caucasian male” and politically motivated violations of

the Hatch Act that he had no choice but to resign. PFR File, Tab 1 at 4-5; IAF,

Tab 10 at 5-7, Tab 11 at 4-5. Contrary to the appellant’s assertion on review that

it “isn’t [his] responsibility to address” the issue of jurisdiction, an appellant has

the burden of proving Board jurisdiction over his appeal. PFR File, Tab 1 at 6;

see 5 C.F.R. § 1201.56(b)(2)(i)(A). For the following reasons, we find that the

appellant has not presented nonfrivolous allegations of Board jurisdiction and he

is not entitled to a jurisdictional hearing. See Ferdon v. U.S. Postal Service,

60 M.S.P.R. 325, 329 (1994).

Resignations are presumed to be voluntary, but the Board has jurisdiction

over an appeal filed by an employee who has resigned if his resignation was

involuntary and tantamount to a forced removal. Parrott v. Merit Systems

Protection Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008) (internal citations

omitted). To establish Board jurisdiction over a constructive adverse action, such

as an involuntary resignation, an appellant must show that: (1) he lacked a

meaningful choice in the matter; and (2) it was the agency’s wrongful actions that

deprived him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8

(2013). The touchstone of the voluntariness analysis is whether, considering the

totality of the circumstances, factors operated on the employee’s decision-making

process that deprived him of freedom of choice. Searcy v. Department of

Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Where, as here, an appellant raises

allegations of discrimination and reprisal in connection with an involuntariness

claim, evidence of such discrimination or reprisal may be considered only insofar

as it relates to the issue of involuntariness. Markon v. Department of State,

71 M.S.P.R. 574, 578-80 (1996). Thus, in an involuntary resignation appeal,

evidence of discrimination or reprisal goes to the ultimate question of coercion,

i.e., whether under all of the circumstances, working conditions were made so

difficult by the agency that a reasonable person in the employee’s position would

have felt compelled to resign. Id.

Regarding the appellant’s repeated claims that an agency manager told him

to “quit or be fired,” if an appellant shows that an agency knew that it would not

prevail on a proposed adverse action, the proposed action is coercive and the

resulting resignation is involuntary. IAF, Tab 1 at 5, Tab 15 at 7; PFR File, Tab 1

at 5; see Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12

(2008). Here, however, the appellant has not alleged that the agency proposed his

removal or any specific disciplinary action at the time of his resignation, and an

employee’s anticipation of an adverse action does not constitute coercion or

duress on the part of the agency. See Holman v. Department of the Treasury,

9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table).

The appellant’s allegations about the underlying claims in and handling of

his EEO complaint do not constitute a nonfrivolous allegation that he was

deprived of freedom of choice as to his resignation. The bulk of his arguments

concerning purported intolerable working conditions consist of his frustration

with the outcome of his EEO complaint finding that he had not shown

discrimination or a hostile work environment. IAF, Tab 10 at 4, Tab 11 at 4-5,

Tab 15 at 4, Tab 16 at 4-5, Tab 20 at 4. Although he maintains that the “conduct

of hate and discrimination went on the whole time he worked at the agency,” he

provides no specifics to support his claim that he experienced a hostile work

environment for over 5 years prior to his resignation. IAF, Tab 10 at 4, Tab 11

at 4. The appellant alleges that he was retaliated against for filing an OIG

complaint against an agency supervisor for reporting the defacing of President

Trump’s photograph in February 2018, approximately 5 months prior to his

resignation. IAF, Tab 10 at 4. He acknowledges that OIG conducted an

investigation into the action, but maintains that the agency did not appropriately

discipline the individual and argues that there was “no way [he] could continue to

work in that environment.” IAF, Tab 1 at 5, Tab 10 at 5. In support of the

alleged intolerable conditions, he alleges that the individual who defaced the

portrait and another management official chose to sit right in front of him at an

ethics training, even though they could have sat anywhere, in order to send a

bullying and intimidation message. IAF, Tab 15 at 4. In finding that the

appellant has not nonfrivolously alleged that his resignation was involuntary, we

do not make a determination about the underlying claims of discrimination or

reprisal, but rather find that these allegations do not establish that a reasonable

person would have found these conditions so oppressive that he had no choice but

to resign. See Markon, 71 M.S.P.R. at 578-80.

The appellant submits evidence for the first time on review, namely

February 2018 email correspondence regarding his informal EEO complaint and

OIG report concerning the vandalizing of President Trump’s portrait. PFR File,

Tab 1 at 17-21. He also submits email correspondence with OIG personnel from

January 2019, several months after his resignation, regarding his dissatisfaction

with OIG’s handling of his complaint. Id. at 11-21. Under 5 C.F.R. § 1201.115,

the Board generally will not consider evidence submitted for the first time with a

petition for review absent a showing that it was unavailable before the close of

the record below despite the party’s due diligence. See Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980); see also Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a

new argument raised for the first time on review absent a showing that it is based

on new and material evidence). The appellant offers no explanation why he did

not submit these emails, sent at least 2 years prior to filing his initial appeal, into

the record, particularly since he included portions of the communications in his

responses to the jurisdiction and timeliness orders. IAF, Tab 11 at 6-10. Even if

we were to consider these documents, they do not support a finding of

jurisdiction. The appellant seemingly submits these documents in support of his

argument that his appeal was timely filed. Id. at 7-8. To the extent that the

appellant argues that these documents support his contention that the EEO and

OIG complaints were not appropriately handled and contributed to his involuntary

resignation, such arguments are unpersuasive.

The record shows that the appellant submitted his letter of resignation only

4 days after filing his formal EEO complaint. IAF, Tab 14 at 24, 28. Contrary to

the appellant’s claims that the agency took no action on his EEO complaint, by

his own admission the agency processed his formal EEO complaint and

amendments thereto, which was eventually adjudicated by an EEOC

administrative judge. IAF, Tab 11 at 4, Tab 10 at 8, Tab 14 at 20, 24, 48.

Moreover, he states that he has filed an appeal of the FAD and thus is still

pursuing his EEO complaint. PFR File, Tab 1 at 7; IAF, Tab 15 at 5. He has not

explained why he could not have pursued his EEO complaint, to stand and fight

the alleged discrimination, while remaining at the agency. See Axsom v.

Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009).

Although the appellant repeats his claims that he suffered whistleblower

reprisal for making a complaint to the agency’s OIG, he stated in his initial

appeal form that he had not filed a whistleblowing complaint with OSC. PFR

File, Tab 1 at 4; IAF, Tab 1 at 4-5. He acknowledges on review that the Board’s

February 2019 email instructed him that it did not have investigative authority

over prohibited personnel practices and informed him that OSC was the

appropriate agency for such a complaint, but he maintains that the Board should

have addressed the prohibited personnel practice. PFR File, Tab 1 at 9; IAF,

Tab 5 at 6. To the extent that the appellant contends that he had to resign because

it would have been fruitless to pursue a whistleblowing complaint with OSC

regarding the alleged reprisal, the fact that other avenues of redress may have

involved protracted procedures or may have been unsuccessful does not establish

that his choice to resign was involuntary. See Searcy, 114 M.S.P.R. 281, ¶ 11.

Therefore, we find that the appellant has not presented nonfrivolous allegations of

Board jurisdiction over his involuntary resignation claim and he is not entitled to

a jurisdictional hearing. See Ferdon, 60 M.S.P.R. at 329.

The appellant’s remaining arguments are unavailing.

As noted above, the case was reassigned to a third administrative judge

during the pendency of the appeal, and the brief order provided the parties no

reason for the reassignment. IAF, Tab 19. The appellant filed a response,

inquiring as to the reason for the reassignment and again complaining about the

EEOC process. IAF, Tab 20 at 4. On review, the appellant argues that there was

“no explanation for why [the] case was reassigned to a friend” of the agency

counsel. PFR File, Tab 1 at 4. He asserts that “there is a very ‘special’

relationship between [agency counsel] and his friend at the MSPB.” PFR File,

Tab 6 at 5. To the extent that the appellant argues that the administrative judge

who issued the initial decision had a conflict of interest or was biased towards the

agency, he offers no specific facts or evidence to support his conclusory

statements. PFR File, Tab 1 at 4, Tab 6 at 5. The appellant has provided no basis

for overcoming the presumption of honesty and integrity that accompanies

administrative adjudicators. See Oliver v. Department of Transportation,

1 M.S.P.R. 382, 386 (1980).

Finally, the appellant asserts that he is “entitled to an investigation into

serious criminal conduct and illegal retaliation.” PFR File, Tab 1 at 4. He

demands “an investigation and accountability” into his complaints against his

employing agency and violations of the Hatch Act. PFR File, Tab 6 at 4-5. The

appellant has maintained throughout his appeal that the EEOC failed to conduct

an investigation into his discrimination complaint. IAF, Tab 10 at 4, Tab 16 at 4.

To the extent that the appellant requests that the Board conduct an investigation

that should have been performed by the EEOC or another government agency, the

Board lacks jurisdiction to independently investigate such claims. PFR File,

Tab 1 at 4, Tab 6 at 4-5; see Maddox v. Merit Systems Protection Board, 759 F.2d

9, 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to those

matters over which it has been given jurisdiction by law, rule, or regulation).

Regarding the purported violations of the Hatch Act, OSC has long possessed the

sole authority to investigate and prosecute allegations of prohibited political

activity under the statute. See Sims v. Government of the District of Columbia ,

7 M.S.P.R. 45, 48 (1981).

NOTICE OF APPEAL RIGHTS 3

This Final Order constitutes the Board’s final decision in this matter.

5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C.

§ 7703(a)(1). By statute, the nature of your claims determines the time limit for

seeking such review and the appropriate forum with which to file. 5 U.S.C.

§ 7703(b). Although we offer the following summary of available appeal rights,

the Merit Systems Protection Board does not provide legal advice on which

option is most appropriate for your situation and the rights described below do

not represent a statement of how courts will rule regarding which cases fall within

their jurisdiction. If you wish to seek review of this final decision, you should

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

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

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

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

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

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

should contact that forum for more information.

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

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

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).

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.

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. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

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

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