# Shamarcus Stockton v. Department of the Army

> Merit Systems Protection Board · April 23, 2024

URL: https://www.frixlaw.com/law-library/cases/9963115

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 23, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SHAMARCUS STOCKTON, DOCKET NUMBER
Appellant, DA-0752-13-1025-B-2

v.

DEPARTMENT OF THE ARMY, DATE: April 23, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael D.J. Eisenberg , Esquire, Washington, D.C., for the appellant.

Gloria Briseno , Texarkana, Texas, 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 remand initial decision,
which found that he failed to prove his affirmative defense of equal employment
opportunity (EEO) retaliation and readopted the previous findings that the agency
proved its charges and the penalty was reasonable. 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
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the analysis of the appellant’s affirmative defense of
retaliation for EEO activity, we AFFIRM the initial decision.

BACKGROUND
The appellant was employed as an Information Technology (IT) Specialist
(Network/Infosec). Stockton v. Department of the Army, MSPB Docket No. DA-
0752-13-1025-I-1, Initial Appeal File (IAF), Tab 3 at 8. In November 2012, he
told an agency employee responsible for processing personnel matters that he
applied for a noncompetitive promotion and questioned why he was not on the list
of best-qualified candidates. Id. at 76, 101. Upon hearing that the agency could
not locate his application, he submitted both what he claimed was a letter
acknowledging his application and a screenshot indicating that the status for his
application to the position was unavailable. Id.; Stockton v. Department of the
Army, MSPB Docket No. DA-0752-13-1025-I-3, Appeal File (I-3 AF), Tab 5
at 19-20.
On January 15, 2013, the appellant initiated contact with an agency EEO
counselor. Id. at 33. He asserted that the agency did not select him for the
promotion because of discrimination on the basis of race and age. Id. at 33-37.
He later elected not to file a formal EEO complaint. Id. at 26. He also testified
3

in February 2013 in his coworker’s Board appeal, in which his coworker raised a
discrimination claim. Stockton v. Department of the Army, MSPB Docket
No. DA-0752-13-1025-B-2, Remand File (B-2 RF), Tab 24, Hearing Compact
Disc (B-2 HCD) at 28:00-28:50 (testimony of the appellant). 2
The agency ordered an inquiry to determine whether the appellant provided
altered or falsified documents in an attempt to obtain eligibility for consideration
for the promotion. IAF, Tab 3 at 57-61. The appellant told the inquiry officer
and another agency employee that he failed to receive consideration for the
promotion because of a computer glitch. Id. at 58; I-3 AF, Tab 5 at 65. After
conducting the inquiry, the inquiry officer concluded that preponderant evidence
established that the appellant submitted an altered acknowledgment letter in an
attempt to obtain eligibility for consideration for the promotion and that the
appellant’s assertion that a computer glitch had affected his application
submission and acknowledgment letter was not credible. IAF, Tab 3 at 60.
On April 10, 2013, the agency proposed to remove the appellant on the
basis of the following charges: (1) he provided the agency with an altered email,
“Subject: Re: Acknowledgment of Occupational Questionnaire,” to support his
assertion that he applied, but failed to receive consideration, for a position; and
(2) lack of candor when he told an agency official and an inquiry officer that a
computer glitch was the reason his acknowledgment email appeared different
from those of other applicants. Id. at 20, 55-56. The appellant responded both
orally and in writing. Id. at 15-54. After considering the responses, the agency
imposed the appellant’s removal, effective June 29, 2013. Id. at 9-14. He filed
the instant appeal challenging his removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative
judge issued an initial decision sustaining the removal. Stockton v. Department of
the Army, MSPB Docket No. DA-0752-13-1025-I-3, Initial Decision (I-3 ID)
2
On cross-examination, the administrative judge clarified that the appellant testified in
a mixed-case before the Board. I-3 HCD at 45:03-45:15 (statement of the
administrative judge).
4

(May 29, 2015); I-3 AF, Tab 30. The appellant filed a petition for review, and
the agency responded in opposition to his petition. Stockton v. Department of the
Army, MSPB Docket No. DA-0752-13-1025-I-3, Petition for Review (PFR) File,
Tabs 1, 3.
The Board issued a remand order granting the appellant’s petition for
review, vacating the initial decision, and remanding the appeal for further
adjudication. Stockton v. Department of the Army, MSPB Docket No. DA-0752-
13-1025-I-3, Remand Order (Oct. 9, 2015) (Remand Order); PFR File, Tab 4.
The Board determined that the administrative judge assigned to the appeal at the
time properly sustained the charges and found that the agency established nexus.
Remand Order, ¶ 6-18. Citing Gath v. U.S. Postal Service, 118 M.S.P.R. 124,
¶ 11 (2012), which in turn cites Wynn v. U.S. Postal Service, 115 M.S.P.R. 146,
¶ 10 (2010), the Board found that the administrative judge failed to identify the
appellant’s affirmative defense of EEO retaliation in his prehearing conference
summary, provide the appellant with notice of his burden for establishing this
defense, or address it in the initial decision. Id., ¶ 19-21. Thus, the Board
vacated the administrative judge’s decision sustaining the removal and remanded
the appeal for adjudication of the affirmative defense, stating that, if the
administrative judge denied the affirmative defense, he could readopt the
previous findings concerning the charges and the penalty. 3 Id., ¶ 21.

3
After the issuance of the remand order, the Board issued Thurman v. U.S. Postal
Service, 2022 MSPB 21. In Thurman, the Board overruled the underlying finding in
Wynn that the Board must sua sponte raise the issue of whether an appellant waived or
abandoned an affirmative defense. Thurman, 2022 MSPB 21, ¶ 17 n.6. Instead, the
Board stated that, in determining whether an administrative judge erred in not
addressing an appellant’s affirmative defenses such that remand is necessary, the Board
will examine a number of factors that are instructive as to the ultimate question of
whether an appellant demonstrated his intent to continue pursuing his affirmative
defense, and whether he conveyed that intent after filing the initial appeal. Id.,
¶¶ 17-18. We find it unnecessary to revisit the Board’s remand order in the instant
appeal. Regardless of whether Thurman would have precluded the appellant from
further pursuing his EEO retaliation claim, we find that he failed to establish this claim
on remand.
5

On remand, the case was assigned to a new administrative judge. She
provided the appellant with notice of his burden for establishing EEO retaliation
and ordered the parties to submit specific evidence and argument in support of
their burdens of proof with respect to the defense. B-2 RF, Tab 4. Both the
appellant and the agency responded. B-2 RF, Tabs 11, 14. After conducting a
hearing on the issue of EEO retaliation, the administrative judge found that the
appellant failed to establish this affirmative defense and adopted the previous
findings sustaining the charges and determining that the penalty was reasonable.
Stockton v. Department of the Army, MSPB Docket No. DA-0752-13-1025-B-2,
Remand Initial Decision (RID) at 4-11 (Feb. 20, 2018); B-2 RF, Tab 25.
The appellant has filed a petition for review, and the agency has responded
in opposition to his petition. Stockton v. Department of the Army, MSPB Docket
No. DA-0752-13-1025-B-2, Remand Petition for Review (RPFR) File, Tabs 1, 3.
The appellant has filed an untimely reply, which, as described in further detail
below, we have not considered. RPFR File, Tab 18.

DISCUSSION OF ARGUMENTS ON REVIEW
We have not considered the appellant’s untimely reply.
Any reply to a response to a petition for review must be filed within
10 days after the date of service of the response to the petition for review.
5 C.F.R. § 1201.114(e). The Board will grant a motion for extension of time to
file a pleading, such as a reply, only if the party submitting the motion shows
good cause. 5 C.F.R. § 1201.114(f). The Board has the discretion to grant or
deny such a motion. Id. Motions for extensions must be filed with the Clerk of
the Board on or before the date on which the petition or other pleading is due. Id.
Additionally, any untimely pleading that is filed late must be accompanied by a
motion that shows good cause for the untimely filing, unless the Board has
specifically granted an extension of time or a motion for extension is pending
before the Board. 5 C.F.R. § 1201.114(g).
6

The agency filed its response via e-Appeal, and it was served electronically
on the appellant on April 16, 2018. RPFR File, Tab 3. Thus, the appellant’s
reply was due on April 26, 2018. See 5 C.F.R. § 1201.114(e). In the ensuing
period, the appellant timely filed, and the Office of the Clerk of the Board
granted, four motions for extensions of time through July 5, 2018. RPFR File,
Tabs 4-5, 7, 9, 10-13.
On July 5, 2018, the appellant filed a motion in which his attorney asked
that the Office of the Clerk of the Board grant him until July 9, 2018, to file his
reply. RPFR File, Tab 14. His attorney asserted that he did not receive the
hearing transcript until June 27, 2018, and that he had a “24-hour bug” that he
caught, beginning July 3, 2018, that diminished his ability to work on the reply.
Id. at 4-5. On the day of the appellant’s request, the Office of the Clerk of the
Board denied the request and stated that the reply was due on that date. RPFR
File, Tab 15. The appellant did not timely file his reply on July 5, 2018, and
instead, on July 9, 2018, he filed a reply, accompanied by a motion to file out of
time or reopen the record. RPFR File, Tabs 16-18.
In his motion to file out of time or reopen the record, the appellant’s
attorney argued that we should grant his previously requested extension and
consider his reply on the basis of the extraordinary circumstances of his
nonreceipt of the hearing transcripts until June 27, 2018, and the “24-hour bug.”
RPFR File, Tab 16 at 4-5. We find that the appellant has not demonstrated good
cause for his untimely filing because, even if we excluded 1 day for his attorney’s
illness, the attorney still had 7 calendar days after its receipt to prepare his reply.
See Moyer v. Office of Personnel Management , 67 M.S.P.R. 378, 380-81 (1995)
(finding that the appellant did not establish good cause for the 3-day delay in
filing her petition for review on the basis of her attorney’s assertion that she had a
heavy workload and was ill when the attorney did not explain why her various
medical conditions prevented her from filing on time and she worked on other
7

cases during the week that the petition was due). Accordingly, we have not
considered the appellant’s reply in rendering our decision.

The administrative judge properly found that the appellant failed to prove his
affirmative defense of EEO retaliation.
The appellant asserts that the administrative judge failed to articulate and
apply the “convincing mosaic” test and did not consider all relevant factors.
RPFR File, Tab 1 at 5-6. He asserts that the administrative judge failed to
consider all of the facts in the context of one another as is required by Savage v.
Department of the Army, 122 M.S.P.R. 612 (2015), clarified by Gardner v.
Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016), and clarified
by Pridgen v. Office of Management and Budget , 2022 MSPB 31, including
suspect timing, rushed decisions, and a questionable investigation. 4 Id. at 6. In
fact, the administrative judge applied the former burden-shifting standard, which
has been superseded by intervening case law. We therefore modify the initial
decision to apply the correct standard.
The appellant may prove his affirmative defense of retaliation for opposing
race and age discrimination by showing that his protected activity was a

4
For the first time on remand, the appellant appeared to argue that the agency
discriminated against him on the basis of race and age when it removed him. B -2 RF,
Tab 11 at 8-9. On review, he argues that he was assigned work outside of his job
description and the agency denied his request for a job audit. RPFR File, Tab 1
at 7 n.3. He also asserts that he was “one of few minorities” in his workplace. Id. He
asserts that, despite his having raised these issues in his declaration, the administrative
judge did not fully develop them. Id. The appellant’s declaration does not address
these allegations. IAF, Tab 3 at 30-32. Further, he did not raise these issues in his
initial appeal, his closing argument, or his first petition for review. IAF, Tab 1; I-3 AF,
Tab 29; PFR File, Tab 1. The remand order limited the administrative judge’s
consideration to the EEO retaliation issue. Remand Order, ¶ 21. Thus, the
administrative judge was not required to address the appellant’s claims of age and race
discrimination, and we also do not consider these claims. See Sanchez v. Department of
Justice, 14 M.S.P.R. 79, 82 (1982) (stating that, when the appellant only raised a claim
of discrimination on the basis of national origin in his original appeal and the Board’s
remand order only referred to an assertion of discrimination on this basis, the presiding
official did not err when, on remand, he refused to accept evidence related to a claim of
discrimination on a different basis).
8

motivating factor in the agency’s decision to remove him. Pridgen, 2022 MSPB
31, ¶¶ 20-22. The appellant may meet this burden by submitting any combination
of direct or indirect evidence, including: (a) evidence of “suspicious timing,
ambiguous statements oral or written, behavior toward or comments directed at
other employees in the protected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn,” also known as “convincing
mosaic”; (b) comparator evidence, consisting of “evidence, whether or not
rigorously statistical, that employees similarly situated to the plaintiff other than
in the characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment;” or (c) evidence that the
agency’s stated reason for its action is “unworthy of belief, a mere pretext for
discrimination.” 5 Pridgen, 2022 MSPB 31, ¶¶ 23-24.
The appellant asserts that the agency’s timing is suspicious because the
agency launched an investigation against him 1 week after he initiated contact
with an EEO counselor. RPFR File, Tab 1 at 6; I-3 AF, Tab 5 at 33. He also
asserts that he testified on behalf of his coworker in the coworker’s mixed-case
Board appeal on February 3, 2013, and was informed of the investigation shortly
thereafter on February 15, 2013. RPFR File, Tab 1 at 6-7. We agree with the
administrative judge that, although the appellant’s EEO complaint and testimony
at the coworker’s hearing were close in time to the agency’s investigation into his
misconduct and his removal, this timeline did not, in itself, establish that his EEO
activity was a motivating factor in these agency actions. RID at 9-10. As the
5
To the extent that the administrative judge informed the appellant that he could
establish his claim of EEO retaliation through direct evidence or any of the three types
of circumstantial evidence, the Board has since clarified that an appellant may establish
his claim through direct or circumstantial evidence, alone or in combination. Pridgen,
2022 MSPB 31, ¶ 24. In any event, the record reflects that the administrative judge
properly considered the evidence as a whole and did not disregard any evidence because
of its direct or circumstantial nature, or hold the appellant to too high a standard. RID
at 4-10. Therefore, we discern no basis to grant review because of this error.
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (stating that an
administrative judge’s procedural error is of no legal consequence unless it is shown to
have adversely affected a party’s substantive rights).
9

administrative judge found, the agency investigation was prompted by the Office
of Personnel Management (OPM) indicating in late January 2013 that the letter
from the appellant appeared to be altered, and there is no evidence that OPM was
aware of the appellant’s EEO activity. RID at 10; IAF, Tab 3 at 78-81. Further,
as the administrative judge stated, it was reasonable for the agency to act shortly
after it received information from OPM. Id. Thus, we agree with her finding that
this timing alone was insufficient to prove that the agency was motivated by
retaliation.
Next, the appellant argues that, in addressing his claim of discrimination,
the administrative judge did not consider that the agency failed to search
nationwide for similarly situated employees. RPFR File, Tab 1 at 7-8 (citing
Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100 (2010),
abrogated on other grounds as recognized in Bowman v. Small Business
Administration, 122 M.S.P.R. 217, ¶¶ 10-11 (2015)). However, Woebcke
addressed the appropriate standard for a claim of disparate penalties, i.e., a claim
that an agency imposed a greater penalty on an appellant than another employee
without a claim of prohibited discrimination. Woebcke, 114 M.S.P.R. 100, ¶ 20.
Here, to be similarly situated for purposes of his disparate treatment claim
alleging discrimination or EEO retaliation, comparators must have reported to the
same supervisor, been subjected to the same standards governing discipline, and
engaged in conduct similar to the appellant’s without differentiating or mitigating
circumstances. See Hooper v. Department of the Interior, 120 M.S.P.R. 658,
¶¶ 6, 8 (2014). Thus, the agency was not required to conduct a nationwide search
for similarly situated employees. 6
The appellant also challenges the agency’s legitimate security interest in
removing him because the appellant argues that the individual that the agency

6
Furthermore, the Board has recently overruled Woebcke in Singh v. U.S. Postal
Service, 2022 MSPB 15, and concluded that, as pertinent here, relevant comparators for
purposes of a disparate penalties analysis generally work in the same unit and
supervisory chain, id., ¶ 13.
10

appointed to investigate his misconduct was inexperienced and admitted that if he
had done a more thorough investigation, his opinion in his report would have
changed. RPFR File, Tab 1 at 9-10. The record does not support his contention.
When the Chief of Skills Development, who served as the investigator, was asked
during the hearing whether additional information would have changed his
conclusion that the appellant had submitted an altered acknowledgment letter in
an attempt to obtain consideration for the position, he testified that he did not feel
his inquiry was incomplete and additional information would not have changed
his conclusion. I-3 HCD at 04:11:50-04:13:55. On remand, the appellant’s
counsel asked the Chief of Skills Development whether he testified in the prior
hearing that his opinion would have changed had he done a more thorough
investigation, and he again answered in the negative. B-2 HCD
at 01:45:48-01:46:03 (testimony of the Chief of Skills Development). Thus, the
appellant’s assertion that the Chief of Skills Development admitted that his
opinion would have changed is not supported by the record. Further, there is no
evidence that any alleged lack of experience as an investigator affected the result
of the investigation. Thus, the appellant’s arguments regarding the investigator
are not persuasive.
Additionally, the appellant asserts that the administrative judge failed to
consider all of the evidence, such as his allegation that he was receiving an unfair
and perhaps discriminatory workload and his participation in the Board appeal of
his coworker, who he identifies as a minority employee. 7 RPFR File, Tab 1 at 11.
The administrative judge considered that the appellant participated in the other
employee’s Board appeal. RID at 6-10. Further, her failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her

7
The appellant has not asserted a claim of whistleblower retaliation under 5 U.S.C.
§ 2302(b)(9)(B) for testifying for or otherwise lawfully assisting any individual in the
exercise of rights under 5 U.S.C. § 2302(b)(9)(A)(i) or (ii), and the Board did not
remand the appeal for consider of such a claim. Remand Order, ¶¶ 19-20; IAF, Tab 1;
see Sanchez, 14 M.S.P.R. at 82.
11

decision. Marques v. Department of Health and Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
The appellant presents a number of other arguments challenging the remand
initial decision. He asserts that the agency targeted him for extreme punishment
by beginning a full-blown investigation against him rather than contacting human
resources to get clarification regarding his job application. RPFR File, Tab 1
at 7. Additionally, he points to the declaration of a coworker, different from the
one on whose behalf he testified, in which the second coworker stated that he felt
the appellant was fired in retaliation for his testimony on behalf of the first
coworker. 8 Id. at 7 n.3; I-3 AF, Tab 16 at 104. The appellant also contends that
the deciding official’s argument that she lost trust in his ability to perform his
duties is belied by the fact that he was able to carry on his duties, which included
access to classified information, for over 4 months after the alleged incident.
RPFR File, Tab 1 at 8. He observes that the agency did not file any criminal
actions against him. Id. at 8-9. Further, he states that if the deciding official was
concerned about trusting him, she should have assigned his case to a more
experienced investigator or scrutinized the investigative report. Id. at 9-10.
Finally, the appellant points to further evidence of retaliation in that, although the
penalty of removal was appropriate under the agency’s table of penalties, it was
an extreme action considering the lack of strong evidence against him. Id.
at 11-12.
The administrative judge found that the agency acted reasonably, the record
supported its conclusions from the investigation, the sustained charges were
serious and directly related to the appellant’s duties and responsibilities as an IT
Specialist, and, although agency officials knew of the appellant’s EEO activity,

8
The second coworker’s declaration actually characterized that the appellant was being
retaliated against for “not testifying against” his first coworker regarding illegal use of
wireless devices and stated that the regulation was violated by almost all personnel
within the Red River Army Depot, Directorate of Information Management when they
used their cellular phones within the walls of the building. I-3 AF, Tab 16 at 104.
12

they credibly denied that they were motivated by retaliation. RID at 9-10. The
appellant’s arguments largely reflect disagreement with the administrative judge’s
findings, and thus they do not provide a reason for disturbing the initial decision. 9
RID at 9-10; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (stating that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so);
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions). We
agree with the administrative judge’s conclusion that the appellant failed to show
that his EEO activity was a motivating factor in the agency’s decision to remove
him. 10

NOTICE OF APPEAL RIGHTS 11
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
9
The appellant asserts that another employee stated that the Director of Information
Management and other members of management told him that the appellant was too
young for his position. RPFR File, Tab 1 at 7, n.3. Pursuant to the Age Discrimination
in Employment Act of 1967, to establish an affirmative defense of age discrimination,
an employee must prove, inter alia, that he is 40 years old or older. 29 U.S.C.
§ 633a(a); see Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 (2012). Because
the appellant is under 40 years of age, to the extent that he is asserting a claim of age
discrimination that we could consider, such a claim would not succeed. B-2 RF, Tab 14
at 41.
10
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB
31, ¶¶ 20-22, 29-33.
11
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.
13

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).
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
14

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 .
15

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
16

of appeals of competent jurisdiction. 12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.

12
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.
17

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9963115. Public record. Not legal advice.