Opinion

William Smith v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM C. SMITH, DOCKET NUMBER

Appellant, DC-0752-18-0003-I-1

DEPARTMENT OF HOMELAND DATE: April 24, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin Crayon, Jr. , Esquire, Kennesaw, Georgia, for the appellant.

Laura T. Geigel , Esquire, and Sarah I. Grafton , Esquire, Arlington,

Virginia, for the agency.

Michael W. Gaches , Esquire, Springfield, Virginia, for the agency.

Steven J. Lewengrub , Esquire, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add

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 Parties may cite nonprecedential orders,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Therefore, we DENY the petition for review. For the reasons set forth below, we

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

BACKGROUND

The Department of Homeland Security removed the appellant from the

excepted service position of SV-0301-J Supervisory Program Specialist with the

Transportation Security Administration (TSA), effective February 20, 2017.

Initial Appeal File (IAF), Tab 6 at 34-44. The appellant filed an equal

employment opportunity (EEO) complaint with the agency’s Office for Civil

Rights and Civil Liberties and, on September 1, 2017, the agency issued a Final

Agency Decision finding no discrimination. IAF, Tab 1 at 28-36. This appeal

followed. The administrative judge adjudicated the appeal on the merits and

affirmed the agency’s action. IAF, Tab 32. The appellant filed a petition for

review. Petition for Review (PFR) File, Tab 1.

Notwithstanding the administrative judge’s adjudication of the merits of the

appeal, the issue of jurisdiction is always before the Board and may be raised at

any time in a Board proceeding. Ney v. Department of Commerce, 115 M.S.P.R.

204, ¶ 7 (2010). The Board’s jurisdiction is limited to those matters over which it

has been given jurisdiction by law, rule or regulation. See Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).

Here, because the appellant worked for the TSA, the Aviation and

Transportation Security Act (ATSA) applies to this case. See Wilson v.

Department of Homeland Security, 122 M.S.P.R. 262, ¶ 3 (2015). Under the

ATSA, TSA employees are covered by the personnel management system that is

applicable to employees of the Federal Aviation Administration (FAA), except to

the extent that the Administrator for TSA modifies that system. Id. Pursuant to

the FAA system, individuals who meet the definition of an “employee” under

5 U.S.C. § 7511(a)(1) generally are entitled to appeal adverse actions to the

Board. Id.

Under 5 U.S.C. § 7511(a)(1)(C)(ii), an individual in the excepted service

(other than a preference eligible) who has completed 2 years of current

continuous service in the same or similar positions in an Executive agency under

other than a temporary appointment limited to 2 years or less is an employee with

Board appeal rights. See 5 C.F.R. § 752.401(c)(5). Similarly, under the agency’s

regulations, TSA Handbook to Management Directive 1100.75–3, Addressing

Unacceptable Performance and Conduct, § J(2)(b) (Feb. 12, 2014), a

Non-Transportation Security Officer (TSO) employee who is not preference

eligible may appeal to the Board only if he has at least 2 years of current

continuous service in the same or similar position. IAF, Tab 8 at 75, 96.

The appellant, a non-TSO who is not preference eligible, was promoted to

the excepted service SV-0301-J Supervisory Program Specialist position from a

SV-0343-I Program Analyst position, effective July 26, 2015. IAF, Tab 8 at 35;

PFR File, Tab 5 at 30. He was indefinitely suspended effective June 29, 2016,

IAF, Tab 8 at 10, and his removal was effected on February 20, 2017, IAF, Tab 6

at 34. Therefore, even if all of the time between June 29, 2016,

and February 20, 2017, when the appellant was in a nonpay status, is credited to

his completion of the required 2 years in the same or similar position, he lacks

2 years of current continuous service in the Supervisory Program Specialist

position. Because the record failed to establish whether the Program Analyst and

Supervisory Program Specialist positions are the same or similar, the Board was

unable to determine whether the appellant has the 2 years of current continuous

service in the same or similar position necessary to establish Board jurisdiction

over his appeal. Thus, it ordered the parties to submit evidence and argument on

the issue of whether the appellant has 2 years of current continuous service in the

same or similar position. PFR File, Tab 4. The parties have responded.

PFR File, Tabs 5, 8.

ANALYSIS

The appellant has not made a nonfrivolous allegation of jurisdiction .

Because, as noted, the appellant did not have 2 years of current continuous

service in the Supervisory Program Specialist position, the Board’s jurisdiction

over this appeal turns on whether the Program Analyst 2 and Supervisory Program

Specialist positions are the same or similar for purposes of § 7511(a)(1). If they

are not, then the appellant is not an employee under § 7511(a)(1)(C)(ii) and he

It appears that the appellant had more than 2 years of current continuous service in the

Program Analyst position when he applied for and accepted promotion to the

Supervisory Program Specialist position and likely had Board appeal rights in the

Program Analyst position under § 7511(a)(1)(C)(ii) when he was promoted. PFR File,

Tab 5 at 13, Tab 8 at 17. In Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344,

349-50 (1994), the Board held that, when an employee moves to a new position within

the same agency and forfeits his Board appeal rights as a result, the agency must inform

the employee of the effect the move will have on his appeal rights; if the employee was

unaware of the loss of Board appeal rights that would result from accepting the new

position and he would not have accepted the new position had he known of the loss of

appeal rights, he is deemed not to have accepted the new appointment and to have

retained the rights incident to his former appointment. The U.S. Court of Appeals for

the Federal Circuit has specifically disapproved of the Exum rule for intra-agency

transfers, and has held that an agency’s failure to inform an employee of the

consequences of a voluntary transfer cannot confer appeal rights on an employee in a

position which has no appeal rights by statute. Williams v. Merit Systems Protection

Board, 892 F.3d 1156, 1163 (Fed. Cir. 2018). Applying Williams, we find that the

agency had no duty to inform the appellant that his promotion to the Supervisory

Program Specialist position could cause him to lose his Board appeal rights, and its

failure to so inform the appellant cannot confer appeal rights under § 7511(a)(1)(C)(ii).

may not appeal his removal to the Board. Alternatively, if the positions are the

same or similar, then the appellant qualifies as an employee under subsection (C)

(ii) and establishes his right of appeal. See Van Wersch v. Department of Health

& Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999).

The regulations implementing 5 U.S.C. chapter 75, subchapter II, define

“similar positions” as “positions in which the duties performed are similar in

nature and character and require substantially the same or similar qualifications,

so that the incumbent could be interchanged between the positions without

significant training or undue interruption to the work.” 5 C.F.R. § 752.402.

Moreover, positions may be deemed “similar” if they are in the “same line of

work,” which has been interpreted as involving “related or comparable work that

requires the same or similar skills.” Mathis v. U.S. Postal Service, 865 F.2d

232, 234 (Fed. Cir. 1988). Our reviewing court has interpreted such language to

mean that positions are similar “if experience in [one] position demonstrates the

knowledge, skills, and abilities required to perform the work of the other job.”

Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1333 (Fed. Cir.

2006); accord Mathis, 865 F.2d at 234; Spillers v. U.S. Postal Service,

65 M.S.P.R. 22, 26 (1994). In conducting this analysis, the Board must focus on

the employee’s actual duties and the work actually performed. Maibaum v.

Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 15 (2011). In determining

whether positions are the “same or similar,” a careful job analysis of the two

positions in question, not the job titles, must be made. Shobe v. U.S. Postal

Service, 5 M.S.P.R. 466, 471 (1981). The Board will consider the totality of the

circumstances in making its determination. Pagan v. U.S. Postal Service,

111 M.S.P.R. 212, ¶ 6 (2009).

In his response to the Show Cause Order, the appellant asserts that the

positions in question are the same or similar. In support of his assertion, he

submits an affidavit comparing his duties as a Program Analyst documenting the

EEO process and his duties as a Supervisory Program Specialist documenting the

“Redress” process, and states that he had prior supervisory experience and would

not have been selected if the two positions were not similar. PFR File, Tab 5

at 13-16. He contends that there was no meaningful difference in the supervisory

duties of the positions because his Program Analyst position involved team

leadership roles. Id. at 16. He also submits the following: excerpts from

Position Classification Standards guidance highlighting the definition of the term

“series,” id. at 17-19; his application for the Supervisory Program Specialist

position, which emphasized his prior supervisory experience, id. at 20-24; a

Salary Increase Justification form, id. at 25; excerpts from the Handbook of

Occupational Groups and Families, describing series 0343 and 0301, id. at 26-29;

a 2015 appraisal form for the Program Analyst position, id. at 30-38; and a 2016

appraisal form for the Supervisory Program Specialist position, id. at 39-49.

The Program Analyst position is in the 0343 series. The Handbook of

Occupational Groups and Families, issued by the Office of Personnel

Management (OPM) and dated December 2018, describes the 0343 Management

and Program Analysis series as follows:

This series covers positions that primarily serve as analysts and

advisors to management on the evaluation of the effectiveness of

government programs and operations or the productivity and

efficiency of the management of Federal agencies or both. Positions

in this series require knowledge of: the substantive nature of agency

programs and activities; agency missions, policies, and objectives;

management principles and processes; and the analytical and

evaluative methods and techniques for assessing program

development or execution and improving organizational

effectiveness and efficiency. Some positions also require an

understanding of basic budgetary and financial management

principles and techniques as they relate to long range planning of

programs and objectives. The work requires skill in: application of

fact-finding and investigative techniques; oral and written

communications; and development of presentations and reports.

Id. at 29.

The Supervisory Program Specialist position is in the 0301 series. OPM’s

Handbook describes the 0301 Miscellaneous Administration and Program Series

as follows:

This series covers positions the duties of which are to perform,

supervise, or manage two-grade interval administrative or program

work for which no other series is appropriate. The work requires

analytical ability, judgment, discretion, and knowledge of a

substantial body of administrative or program principles, concepts,

policies, and objectives.

Id. at 28.

OPM’s Handbook thus describes the two series very differently.

The appellant argues, however, that because both the Program Analyst and

Supervisory Program Specialist positions are in the “300 series,” they are similar.

However, the appellant’s evidence does not support that assertion. Classification

standards define “series” as a subdivision of an occupational group consisting of

positions similar as to specialized line of work and qualification requirements.

Id. at 18. Those standards define “occupational group” as a major subdivision of

the General Schedule, embracing a group of associated or related occupations;

e.g., the Accounting and Budget Group, GS−500; the Engineering and

Architecture Group, GS−800; the General Administrative, Clerical, and Office

Services Group, GS−300. Id. Thus, although the Program Analyst and

Supervisory Program Specialist are in the same 300 “occupational group,”

contrary to the appellant’s assertion, they are not in the same series.

Therefore, although the appellant’s submissions show that the Program Analyst

and Supervisory Program Specialist positions may be “associated or related,”

those submissions do not constitute a nonfrivolous allegation that they are

“similar.”

A comparison of the appellant’s 2015 appraisal form for the Program

Analyst position, id. at 30-38, and his 2016 appraisal form for the Supervisory

Program Specialist position, id. at 39-49, shows that the Program Analyst position

is in the I Band, has no requirement for a security clearance, and has six Core

Competencies as follows:

1. Accomplishes high volumes of work with daily and long term

priorities. Shifts among job tasks with competing priorities.

Operates within project deadlines;

2. Welcomes change and new information, ideas, and strategies.

Adapts work methods in response to new information, unexpected

obstacles, and changing conditions. Adjusts rapidly to new

situations warranting attention and resolution. Develops

contingency plans to ensure objectives can be met.

3. Applies policies, directives, and regulations that relate to TSA

operations and programs when making decisions. Ensures that

activities, services, or products reflect organizational goals and

objectives. Adjusts priorities to respond to pressing and changing

needs. Adapts work methods in response to new information and

changing conditions.

4. Identifies the existence of problems that impede accomplishing

tasks. Researches the cause of problems and offers a variety of

solutions to resolve problems. Explores new ways to accomplish

tasks. Implements solutions to problems to ensure completion of

affected tasks.

5. Listens actively and attends to non-verbal cues when

communicating with others. Provides information on products,

services, resources, or opportunities, as applicable. Explains,

defends, or justifies decisions, recommendations, and findings.

Discusses results, problems, plans, suggestions, terms, or

conditions with others. Persuades others to take a particular

course of action or to accept findings and recommendations. Acts

effectively as a liaison between work unit and customers.

Prepares reports, briefs, and studies. Explains technical or other

complex information.

6. Uses a variety of job-specific software systems and databases.

Verifies the accuracy of the data captured and transcribed.

Processes forms, records, documents, or other materials.

Collects, compiles, organizes, and transfers electronic

information. Reviews reports, documents, or other materials to

verify correctness, compliance, or authenticity. Searches for and

extracts information from data repositories, file servers, Internet,

reports, and publications. Remains current on developments,

technologies, and work practices. Acquires and develops new job

skills and knowledge. Applies and maintains specialized job

skills and knowledge.

Id. at 31-33.

The Supervisory Program Specialist position, also referred to as a Redress

Operations Manager, is in the J Band, requires a secret security clearance,

IAF, Tab 8 at 23-29, and the performance plan for the position has seven core

competencies, PFR File, Tab 5 at 41-45. Of these core competencies, the first

four are identical to those of the Program Analyst position. The fifth is similar.

However, it also provides that the incumbent explains and defends management's

policies or practices. Id. at 43.

The sixth and seventh core competencies for the Supervisory Program

Specialist are wholly different from the core competencies for the Program

Analyst position. The sixth provides as follows:

Formulates effective strategies consistent with the agency's

organizational goals and objectives. Determines resource

requirements based on program objectives and operational needs.

Uses metrics and other data as part of the evaluative process to

identify problems and propose solutions. Adheres to, and

integrates knowledge of, all relevant directives and regulations to

address issues and resolve problems. Reviews and analyzes

programs, operational results, and policy to identify potential

areas of improvement.

Id. at 44. The seventh core competency provides as follows:

Creates a positive work environment by encouraging mutual

respect, communication, and innovation and manages conflict

constructively. Organizes and facilitates teams skillfully to

accomplish mutual goals. Administers performance management

responsibilities including completion of performance plans and

ratings, provision of meaningful feedback, and taking appropriate

measures to address performance and conduct issues. Involves

team members in decisions and problem solving. Communicates

information on performance, work status, changes, issues, and

results effectively. Leads, develops, and manages a high

performing, diverse workforce, ensuring employment practices

are administered in a fair and equitable manner. Promotes and

fosters an inclusive workplace where diversity is valued and

leveraged to achieve the vision and mission of the organization.

Recruits, hires, transitions into Federal service, and retains

qualified employees, as applicable. Access, critically analyze,

evaluate and apply risk information to the decision making

process in support of organizational goals and objectives.

Id. at 45. These core competencies 3 show material differences between the two

positions in that the Supervisory Program Specialist position has full supervisory

and managerial responsibilities while the Program Analyst position has none.

The appellant asserts that he has supervisory experience. We do not question his

assertion that he has such experience; however, he has not established that he

acquired supervisory experience in the Program Analyst position. In order for the

positions to be the same or similar, the appellant must show that both have the

same or similar supervisory and managerial responsibilities. The appellant’s

submission of his application for the Supervisory Program Specialist position

emphasizes the appellant’s prior supervisory experience, showing the importance

of that experience to the Supervisory Program Specialist position.

In his affidavit, the appellant states that he worked on a detail for the

Office of Civil Rights on loan from the Atlanta Airport Federal Security Airport

Staff. Id. at 14-15. He asserts that on that detail he documented the EEO process

as a Program Analyst. Id. He explains that the purpose of the process flow was

to determine the flow of hand-offs and decision points. Id. It included

processing time for each step. The process flow diagram depicted actions from

application submittal process to hearing. Id. Also, costs were determined for

each step to determine where most of the costs were being incurred in the TSA

process. Id. He argues that, similarly, in the Supervisory Program Specialist

Position, he documented the Redress process, interviewing employees and the

Director in order to “determine all steps” of the Redress process. Id. However,

the detail position was not that from which the appellant was promoted, and thus

Although the appraisal forms set forth the core competencies for the respective

positions, the appellant has not submitted positions descriptions or other documents

showing the duties and responsibilities of the positions.

the duties described in that position would not establish that his Program Analyst

and Supervisory Program Specialist positions were the same or similar.

See Wafford v. U.S. Postal Service, 34 M.S.P.R. 691, 693-94 (1987); White v.

U.S. Postal Service, 34 M.S.P.R. 687, 690 (1987).

In sum, the appellant has failed through his submissions to make a

nonfrivolous allegation that the Program Analyst position, which has no

supervisory or managerial duties and is in the I Band and the 0343 series,

is similar to the Supervisory Program Specialist position in the J Band and the

0301 series, with its supervisory and managerial responsibilities. 4 The appellant

has failed to nonfrivolously allege that the positions have duties that are similar

in nature and character and require substantially the same or similar

qualifications, so that the incumbent could be interchanged between the positions

without significant training or undue interruption to the work. See 5 C.F.R.

§ 752.402. The appellant has failed to make a nonfrivolous allegation that

experience in the Program Analyst position demonstrates the knowledge, skills,

and abilities required to perform the work of the Supervisory Program Specialist

position. See Coradeschi, 439 F.3d at 1333. 5

The appellant relies on Martinez v. Department of Homeland Security, 118 M.S.P.R.

154 (2012), Sandoval v. Department of Agriculture, 115 M.S.P.R. 71 (2010), and a

nonprecedential Board Order in support of his arguments. We find that Martinez and

Sandoval are distinguishable because, among other things, they did not involve a

comparison of supervisory and non-supervisory positions. Moreover, nonprecedential

orders generally are not binding on the Board. 5 C.F.R. § 1201.117(c)(2).

To establish whether two positions are the same or similar for the purposes of 5 U.S.C.

§ 7511, the Board also looks to whether the positions are in the same competitive level

for reduction in force purposes. Beets v. Department of Homeland Security,

98 M.S.P.R. 451, 455 (2005); Spillers, 65 M.S.P.R. at 26. Positions are in the same

competitive level if they: (1) are in the same grade or pay scale; (2) are in the same

classification series; (3) have similar duties; and (4) require the same skills and

qualifications. See Spillers, 65 M.S.P.R. at 26. The appellant does not assert that the

Program Analyst and Supervisory Program Special positions are in the same

competitive level. We note, however, that the two positions are in different pay bands,

in different classification series, and as explained have different duties, suggesting that

they are not in the same competitive level.

Accordingly, we find that the appellant has failed to make a nonfrivolous

allegation that he is an individual in the excepted service who has completed

2 years of current continuous service in the same or similar positions in an

executive agency. Thus, he has failed to make a nonfrivolous allegation that he is

an employee under 5 U.S.C. § 7511(a)(1)(C)(ii) 6 with appeal rights to the Board.

We dismiss his appeal of his removal for lack of jurisdiction. 7

NOTICE OF APPEAL RIGHTS 8

This is 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

In his reply, the appellant incorrectly assumes that he qualifies as an employee under

5 U.S.C. § 7511(a)(1)(C)(i). PFR File, Tab 5 at 4 n.1. It is undisputed, however, that

the appellant had permanent status in the excepted service and was never under an

initial appointment pending conversion to the competitive service in either position.

Accordingly, 5 U.S.C. § 7511(a)(1)(C)(i) does not apply here. See Pennington v.

Department of Veterans Affairs, 57 M.S.P.R. 8, 9-11 (1993).

The appellant requests that, if the Board dismisses his appeal for lack of jurisdiction,

the Board remand his “mixed case for unmixed processing pursuant to 29 C.F.R.

§ 1614.302(b) . . . .” PFR File, Tab 5 at 11. Section 1614.302(b) provides that, if a

person files a timely appeal with the Board from the agency’s processing of a

mixed-case complaint and the Board dismisses it for jurisdictional reasons, the agency

shall reissue a notice giving the individual the right to elect between a hearing before an

administrative judge and an immediate final decision. The appellant has identified no

provision under which the Board must “remand” an appeal for processing as a

non-mixed case.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

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

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

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

should contact that forum for more information.

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

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

U.S. Court of Appeals for the Federal Circuit, which must be received by the

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

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

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

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

competent jurisdiction. 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