Julio Nunez v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIO C. NUNEZ, DOCKET NUMBER

Appellant, AT-0752-17-0702-I-1

v.

DEPARTMENT OF VETERANS DATE: April 24, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Julio C. Nunez , Miami Beach, Florida, pro se.

Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, 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

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

analyze the appellant’s allegation of discrimination under Pridgen v. Office of

Management and Budget, 2022 MSPB 31, we AFFIRM the initial decision.

BACKGROUND

The appellant was a Licensed Practical Nurse at an agency medical center

serving under an excepted-service appointment. Initial Appeal File (IAF), Tab 5

at 67. The agency proposed his removal based on the following charges:

(1) inappropriate conduct; (2) failure to timely renew his agency Privacy and

Information Security Awareness and Rules of Behavior certification; and

(3) failure to timely renew his Basic Life Support (BLS) certification. Id.

at 36-41. The appellant provided oral and written replies to his proposed

removal, and the agency sustained all the charges as specified and imposed his

removal effective August 7, 2017. Id. at 27-32.

The appellant filed a timely appeal with the Board challenging his removal

and requested a hearing. IAF, Tab 1 at 1. After conducting the hearing, the

administrative judge sustained his removal. IAF, Tab 21, Initial Decision (ID).

She found that the agency proved all three charges and their specifications, that

the appellant failed to prove his affirmative defense of race or national origin

discrimination, that there was a nexus between the appellant’s misconduct and the

efficiency of the service, and that the penalty of removal was reasonable. ID

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at 2-17. The appellant has filed a petition for review, the agency has responded

in opposition to his petition, and the appellant has replied. Petition for Review

(PFR) File, Tabs 1, 4-5.

The administrative judge properly found that the agency proved the charges.

In the first charge, the agency specified that the appellant engaged in

inappropriate conduct when he had a loud personal conversation in a waiting

room for clients of the Disabled American Veterans (DAV) office on June 2,

2017, and he became argumentative with a DAV representative when she asked

him to leave. IAF, Tab 5 at 36. The DAV office was located within the agency

facility at which the appellant worked. Id. at 36, 43. The agency also specified

that the appellant screamed at his manager for opening his office door on May 25,

2017, refused his manager’s request to lower his voice, and continued screaming

that there were going to be problems. Id. at 36. The administrative judge found

that the agency proved by preponderant evidence that the appellant engaged in

inappropriate conduct on May 25, 2017, and on June 2, 2017, as specified. ID

at 5, 8. On review, the appellant does not challenge these findings. We find no

basis for reaching a different conclusion.

In the second charge, the agency specified that the appellant failed to renew

his agency Privacy and Information Security Awareness and Rules of Behavior

certification (cybersecurity training) prior to the expiration of his prior

certification on May 8, 2017. IAF, Tab 5 at 37. The administrative judge

considered the appellant’s argument that he took the cybersecurity training twice,

and his failure to provide evidence of completion, and found that the agency

proved the charge by preponderant evidence. ID at 9. On review, the appellant

appears to assert that he took cybersecurity training in November 2016, including

on November 9, 2016, and also argues that his May 9, 2017 training was within

the 6-month retraining period. PFR File, Tab 1 at 5. We are not persuaded by the

appellant’s argument on review.

4

Even assuming the retraining period is 6 months, as the appellant claims,

6 months from November 8, 2016, is May 8, 2017, the day prior to when the

appellant completed his training. As a result of his delay, his user account was

disabled on May 8, 2017, and he was unable to see patients that day. IAF, Tab 5

at 37, 53. In sustaining this charge, the administrative judge thoroughly

addressed the record evidence, including the hearing testimony concerning the

material issues on appeal, and provided a detailed explanation for why he found

the agency witnesses’ versions of events more credible. ID at 8 -9. The

administrative judge did not make an explicit finding that the appellant did not

take the training, as he claimed, in November 2016. Nonetheless, the

administrative judge’s determination that the agency proved the charge implicitly

discredits the appellant’s claim. Id. Because the administrative judge made his

findings after holding a hearing and observing the testimony of the appellant and

other witnesses, we defer to it. See Purifoy v. Department of Veterans Affairs,

838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board must defer to an

administrative judge’s determinations when they are “necessarily intertwined”

with an analysis of a witness’s demeanor). The appellant’s vague arguments on

review generally challenging the credibility of the agency’s witnesses are

insufficient to cause us to disturb the administrative judge’s well -reasoned

findings. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (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

on the issue of credibility); Broughton v. Department of Health and Human

Services, 33 M.S.P.R. 357, 359 (1987) (same).

In the third charge, the agency specified that the appellant failed to timely

renew his BLS certification. IAF, Tab 5 at 37. The administrative judge found

that the agency proved this charge by preponderant evidence. ID at 11. In

reaching this decision, the administrative judge considered the appellant’s

argument that he asked his supervisors for help completing the training required

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to renew his certification but they would not help him. Id. The administrative

judge also considered the appellant’s supervisor’s testimony: BLS is mandatory

for anyone who works with patients; he had sent the appellant an email reminding

him of the requirement; and employees can take the training in the hospital at no

charge or with an outside provider. ID at 10; Hearing Compact Disc (HCD)

(testimony of the appellant’s supervisor). On review, the appellant does not

challenge the administrative judge’s findings. We find no basis for reaching a

different conclusion. See Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (recognizing that the Board must defer to an administrative

judge’s credibility findings when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so). We therefore affirm the administrative judge’s finding that the agency

proved all three charges and all underlying specifications.

The administrative judge properly denied the appellant’s affirmative defense of

race and national origin discrimination.

Applying the burden-shifting standard set forth in cases such as Savage v.

Department of the Army, 122 M.S.P.R. 612 (2015), the administrative judge

found that the appellant failed to establish that his race or national origin was a

motivating factor in the agency’s removal action, ID at 14. We therefore need not

analyze whether the appellant could prove that the removal was a but-for cause of

the action, as that standard is a higher burden than motivating factor. Pridgen,

2022 MSPB 31, ¶¶ 20-22, 48; Desjardin v. U.S. Postal Service, 2023 MSPB 6,

¶ 31.

Here, the administrative judge considered the appellant’s argument that

Cuban-American employees were treated less favorably than African-American

and Caribbean employees in hiring and in attendance-related disciplinary actions,

and that only Latinos (especially Cubans) were fired. ID at 13. However, she

found the appellant’s allegations unsubstantiated. Id. In reaching her decision,

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the administrative judge implicitly credited the agency’s witnesses’ testimony and

explanation of nondiscriminatory bases for removing the appellant and found that

the appellant’s version of events was not credible. ID at 3-11, 13-14. The

administrative judge also found that the evidence showed that he engaged in the

charged misconduct. ID at 29.

The appellant appears to suggest on review that the timing of the agency’s

actions was suspicious. PFR File, Tab 1 at 41-43. In particular, he points to the

closeness in time between the conduct that underlies his removal, beginning with

his failure to take his cybersecurity training on May 8, 2017, and the removal

itself, effective August 7, 2017. Id. We disagree that the timing here is

suspicious. Instead, it reflects the agency’s diligence in taking prompt corrective

action. We find that the administrative judge properly considered the witnesses’

testimony and the evidence as a whole in finding that the appellant failed to show

that discrimination based on race or national origin was a motivating factor in his

removal. ID at 14.

The appellant’s additional evidence and arguments on review do not provide a

reason to disturb the administrative judge’s decision to sustain his removal.

For the first time on review, the appellant asserts that the removal decision

was not in accordance with the law. PFR File, Tab 1 at 1. The Board generally

will not consider an argument raised for the first time in a petition for review

absent a showing that it is based on new and material evidence not previously

available despite the party’s due diligence. Clay, 123 M.S.P.R. 245, ¶ 6; Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant

has not explained why this argument could not have been raised before the

7

administrative judge, and thus we need not consider it. 2 See 5 C.F.R.

§ 1201.115(d).

On review, the appellant further claims that the agency’s action was based

on harmful error and reprisal for filing a Veterans Employment Opportunities Act

of 1998 complaint and whistleblowing. PFR File, Tab 1 at 1 -2, 4. He also

submits a list of alleged retaliatory actions taken against him, including but not

limited to his removal. Id. at 2. The appellant similarly did not make these

arguments before the administrative judge or explain his failure to do so;

therefore, we need not consider them either. 3 See Clay, 123 M.S.P.R. 245, ¶ 6;

Banks, 4 M.S.P.R. at 271. Although unclear, the appellant appears to suggest that

his supervisors were, like him, late in taking cybersecurity training. PFR File,

Tab 1 at 4. However, he does provide any specific cites to the record or explain

his argument in a way that we can determine whether he raised it below and how

it factors into our decision here. Thus, we decline to consider it.

Moreover, at the beginning of the hearing, the administrative judge asked

the appellant if he wanted to make any additions, corrections, or objections to her

prehearing conference order, which summarized the material issues on appeal “ to

the exclusion of all others ” (emphasis in original), but he did not take advantage

2

On review, the appellant also reasserts his claim that he is appealing a negative

suitability determination. PFR File, Tab 1 at 2; IAF, Tab 1 at 2. The administrative

judge’s failure to consider this issue on appeal did not prejudice the appellant’s

substantive rights and does not require reversing the initial decision. Assuming that the

Board has jurisdiction to review a suitability action taken against the appellant, he

would be entitled to, at most, the same review he received here. See Odoh v. Office of

Personnel Management, 2022 MSPB 5, ¶¶ 15-16 (explaining that, at most, an employee

has the right to appeal a suitability determination as if it were a removal action, but

noting that the newly enacted 5 U.S.C. § 7512(F) prevented the Board from modifying a

suitability action taken by the Office of Personnel Management).

3

As proof that the agency’s action was based on harmful error, the appellant makes the

following assertions: that he was falsely accused of terrorism and someone broke into

his car on agency property; that the agency withheld evidence against him to win, such

as videos and email; that he was subjected to punishment without union representation;

that the agency lied to the unemployment office and denied his right to unemployment;

and that the agency locked up his computer so that he could not get paid. PFR File,

Tab 1 at 1, 4.

8

of that opportunity to raise these additional claims. IAF, Tab 15 at 6; Tab 20,

HCD (opening statement of the administrative judge). The appellant’s failure to

object and to make timely additions or corrections to the administrative judge’s

order setting forth the exclusive list of material issues on appeal precludes him

from doing so on review. See Miller v. U.S. Postal Service, 117 M.S.P.R.

557, ¶ 7 (2012).

The appellant refers to himself on review as a whistleblower, seemingly

based on his complaint about his manager’s alleged discriminatory hiring

practices. PFR File, Tab 1 at 2. Here, the pro se appellant may have raised a

nonspecific claim of reprisal for complaining that his manager was hiring only

Haitian and/or African-American nurses illegally. IAF, Tab 1 at 7. We construe

the appellant’s argument as a claim of equal employment opportunity (EEO)

reprisal not whistleblower reprisal. Edwards v. Department of Labor,

2022 MSPB 9, ¶¶ 21-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir.

July 7, 2023). 4

To the extent that the appellant may have attempted to raise an affirmative

defense of EEO reprisal on appeal, which the administrative judge did not

identify or address below, we find that he has effectively waived or abandoned

this claim. In Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, we

articulated relevant factors in determining whether a previously raised affirmative

defense has been effectively waived or abandoned by the appellant. These factors

include the clarity with which an appellant raised his affirmative defense,

4

During the pendency of this appeal, the National Defense Authorization Act for Fiscal

Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on

December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5

of the U.S. Code, including section 2302(b)(9)(C) to provide that, in addition to the

Inspector General of an agency or the Special Counsel, a disclosure to “any other

component responsible for internal investigation or review” is also a protected activity.

Edwards, 2022 MSPB 9, ¶ 29. However, all of the events relevant to this appeal

occurred prior to the enactment of the NDAA. The change to section 2302(b)(9)(C)

does not apply to cases arising prior to the enactment of the NDAA. Edwards,

2022 MSPB 9, ¶¶ 30-34. Accordingly, we need not decide whether the appellant

engaged in protected activity under the amendment to section 2302(b)(9)(C).

9

continued to pursue it, objected to orders that failed to identify it, and may have

been confused by misleading or incorrect information. Id., ¶ 18. The appellant’s

only reference to this reprisal claim on appeal was in a one-page submission

attached to his appeal form. IAF, Tab 1 at 7. Although he reasserts his claim of

EEO reprisal on review, he did not make a timely addition or correction to the

administrative judge’s order setting forth the exclusive list of material issues on

appeal when given the opportunity to do so at the commencement of the hearing.

PFR File, Tab 1 at 2, 29. The appellant does not argue on review that he

mistakenly believed that his EEO reprisal claim was part of what the

administrative judge identified as his discrimination claim in the prehearing

conference summary. IAF, Tab 15 at 3-6. We therefore find no reason to believe

that the apparent abandonment of this claim was the result of confusion or

misleading or incorrect information. IAF, Tab 19 at 29. Accordingly, we find

that the appellant’s EEO reprisal claim was effectively waived or abandoned.

The appellant also submits numerous documents with his petition for

review, including undated handwritten notes and documents ranging in date from

November 2016 to October 2017. 5 PFR File, Tab 1 at 19-28, 31-39. The

appellant has not shown that the evidence in his submissions is new and material

or that the documents were not available prior to the close of the record despite

his due diligence. Therefore, we will not consider them. See Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that, under 5 C.F.R.

§ 1201.115, the Board will not consider evidence submitted for the first time with

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

was closed despite the party’s due diligence).

5

The appellant also submits several documents on review, including the Table of

Contents for the Agency’s Response to his appeal, pages from his performance

appraisals in 2015 and 2016, and a two-page statement that he submitted on appeal.

PFR File, Tab 1 at 7-19, 29-30, 41-43; IAF, Tab 1 at 7-8, 15-20, 24, Tab 5 at 4-6.

These documents are already part of the record and not new. See Easterling v. U.S.

Postal Service, 110 M.S.P.R. 41, ¶ 10 (2008) (explaining that the Board will not

consider evidence that is already part of the record because such evidence is not new).

10

The administrative judge properly addressed the agency’s chosen penalty.

When, as here, all of the charges have been sustained, the Board will

review an agency-imposed penalty only to determine if the agency considered all

of the relevant Douglas factors, and exercised management discretion within

tolerable limits of reasonableness. See Douglas v. Veterans Administration, 5

M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant to

penalty determinations). In making this determination, the Board must give due

weight to the agency’s primary discretion in maintaining employee discipline and

efficiency, recognizing that the Board’s function is not to displace management’s

responsibility, but to ensure that managerial judgment has been properly

exercised. Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 25 (2016);

Douglas, 5 M.S.P.R. at 306. The Board will modify the agency’s chosen penalty

only if it finds that the agency’s judgment clearly exceeded the limits of

reasonableness. Douglas, 5 M.S.P.R. at 306.

On review, the appellant asserts that the agency did not properly apply the

Douglas factors in determining the penalty. PFR File, Tab 1 at 1. For example,

he submits evidence and argument that his performance appraisal was fully

successful, and he claims that the agency asserted the opposite. PFR File, Tab 1

at 6-17. Contrary to the appellant’s argument on review, the record reflects that

the deciding official in the removal action considered the appellant’s successful

job performance in his Douglas factor penalty analysis. IAF, Tab 5 at 30.

Moreover, the administrative judge explicitly found that the appellant’s

acceptable work performance was a mitigating factor but agreed with the deciding

official that removal was warranted because the appellant’s acceptable job

performance and other mitigating factors did not outweigh the seriousness of his

misconduct and his lack of rehabilitative potential, considering his past

disciplinary record. 6 IAF, Tab 5 at 30; ID at 16-17.

6

In applying the Douglas factors, both the administrative judge and the deciding

official also considered as a mitigating factor the appellant’s allegation that he was

harassed by his supervisor but concluded that it did not excuse his behavior. ID

11

Here, the removal decision letter shows that the deciding official

considered the relevant factors including the seriousness of the appellant’s

repeated misconduct, which he found unprofessional and disruptive to his work

and his coworkers. IAF, Tab 5 at 30-36. The deciding official considered that

the appellant’s misconduct was contrary to the behavior expected of a Licensed

Practical Nurse in a position of trust. Id. at 30-31. He further considered the

appellant’s prior discipline: a 7-day suspension in December 2016 for failure to

safeguard confidential patient information, and a reprimand in October 2016 for

loafing, willful idleness, failure to safeguard confidential patient information, and

unauthorized absence. Id. at 30. The deciding official determined that the

appellant’s supervisors had lost trust and confidence in him and his ability to be

rehabilitated. Id. at 30-32. He also determined that the proposed removal penalty

fell within the acceptable range of the agency’s table of penalties. Id. at 31.

The administrative judge found that the deciding official thoroughly

considered the relevant Douglas factors and exercised his discretion within the

tolerable limits of reasonableness in deciding to remove the appellant. ID

at 15-17. Recognizing that the Board must accord proper deference to the

agency’s primary discretion in managing its workforce, we see no reason to

disturb this finding. 7 See Douglas, 5 M.S.P.R. at 306.

The appellant did not prove his claim of bias by the administrative judge.

The appellant also appears to allege bias by the administrative judge based

on his statement that he had the right to a fair hearing. PFR File, Tab 1 at 1. We

decline to grant review on this basis. The appellant submits no examples of the

at 16-17. In weighing this factor, the deciding official noted that the appellant’s

harassment claim was investigated by Patient Care Services and found to be

unsubstantiated. ID at 16; IAF, Tab 5 at 27, 32.

7

The appellant has not challenged the administrative judge’s finding that the agency

proved nexus and we find no reason to disturb this finding on review. ID at 14; see

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (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 on issues of credibility).

12

alleged bias for the Board to consider, and his conclusory argument on review

does not show that the administrative judge’s conduct during the course of the

proceeding evidenced “a deep-seated favoritism or antagonism that would make

fair judgment impossible.” See Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)).

We deny the appellant’s motion requesting proof that the agency lied and asking

the Board to open an investigation and interview various individuals to determine

the validity of his claims.

In reply to the agency’s response to his petition for review, the appellant

has filed a motion requesting proof that the agency lied to Federal investigators

and withheld proof to prevail in the removal action. PFR File, Tab 5 at 2-4. He

asks the Board to investigate his claims of misconduct at work, and he lists the

people that he would like the Board to question during the investigation. Id. In

addition, he asks for a copy of the Final Agency Decision (FAD) on his EEO

complaint, which he claims that he never received although he submits what

appears to be the first page of the FAD on review. PFR File, Tab 1 at 32, Tab 5

at 2. He argues for the first time that the administrative judge erred in her

credibility determinations. PFR File, Tab 4 at 5.

To the extent that the appellant’s reply raises new allegations of error, we

will not consider them. See 5 C.F.R. § 1201.114(a)(4) (stating that a reply is

limited to the factual and legal issues raised by another party in the response to

the petition for review and may not raise new allegations of error). Moreover, to

the extent he is alleging that the agency refused to voluntarily make pertinent

evidence reasonably available prior to the hearing on his appeal, his failure to file

a motion to compel precludes him from raising this issue for the first time on

petition for review. See Szejner v. Office of Personnel Management, 99 M.S.P.R.

275, ¶ 5 (2005) (declining to consider the appellant’s argument on review that the

agency failed to respond to his discovery requests because he did not file a

13

motion to compel below), aff’d, 167 F. App’x. 217 (Fed. Cir. 2006). We

therefore deny his motion requesting an investigation and additional documents

from the agency on review. Accordingly, we affirm the initial decision

as modified.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

8

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.

14

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

15

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

16

(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. 9 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.

9

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

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.

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.