Opinion

Robert Mulligan v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT MULLIGAN, JR., DOCKET NUMBER

Appellant, PH-1221-22-0154-W-1

DEPARTMENT OF DEFENSE, DATE: May 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daniel P. Meyer , Esquire, Kaya C. Massey , Esquire, Washington, D.C., for

the appellant.

Allen Brooks , Esquire, Quantico, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

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

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

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

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

A nonprecedential order is one that the Board has determined does not add

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 Parties may cite nonprecedential orders,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

clarify the nonfrivolous allegation standard and address the appellant’s arguments

of adjudicatory error, we AFFIRM the initial decision.

BACKGROUND

The appellant worked as a GS-7 Security Guard at the agency’s Defense

Counterintelligence and Security Agency (DCSA) from August 2020, until the

agency removed him in April 2021, prior to the completion of his 2-year trial

period. Initial Appeal File (IAF), Tab 1 at 1. The agency’s stated reason for

removing the appellant was “inappropriate behavior, failure to follow supervisor

instruction, and absence without leave.” IAF, Tab 6 at 48-50.

The appellant filed a complaint with the Office of Special Counsel (OSC)

alleging that the agency retaliated against him based on his protected disclosures,

among other alleged prohibited personnel practices. IAF, Tab 1 at 4.

Specifically, he alleged that, between August and October 2020, he repeatedly

informed his supervisors and human resources officials that the agency violated

various laws by failing to issue him a firearm. IAF, Tab 5 at 24. The appellant

also sent a letter to U.S. Senator Patrick Toomey regarding the same. Id.

In December 2020, the appellant disclosed to his first-level supervisor concerns

related to COVID-19 quarantine and safety protocols. Id. at 25. Finally, in

March 2021, he reported safety concerns to his first-level supervisor, apparently

because he had not been issued a firearm. Id. at 26. OSC closed its investigation

and informed the appellant of his appeal rights with the Board. IAF, Tab 1 at 4-5.

The appellant timely filed this IRA appeal alleging that the agency

retaliated against him for reporting violations of law, rule, or regulation and a

substantial and specific danger to public health and safety. IAF, Tab 5 at 61-62.

The administrative judge did not inform the appellant of his burden to establish

Board jurisdiction over his IRA appeal but ordered him to produce additional

information so as “to properly assess [the appellant’s] Whistleblower claims.”

IAF, Tab 4 at 2. In response, the appellant submitted a narrative statement and a

copy of his complaint to OSC with attachments, which included a declaration and

chronology prepared by the appellant. IAF, Tab 5 at 4-110. The administrative

judge issued a second order to the appellant instructing him to identify the exact

law, rule, or regulation he alleged that the agency violated. IAF, Tab 8. The

appellant filed several documents in response to the order. IAF, Tabs 12-13.

The agency filed a motion to dismiss. IAF, Tab 14. The next day, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. IAF, Tab 16, Initial Decision (ID) at 1, 10. He found that the

appellant exhausted his administrative remedies with OSC, but that his

disclosures were not protected under 5 U.S.C. § 2302(b)(8). ID at 6-10.

Specifically, he found that the appellant failed to establish that he reasonably

believed that the agency violated a law, rule, or regulation when it failed to arm

him while on duty, that the appellant never made a disclosure concerning the

alleged violation of COVID-19 protocols, and that the report of unsafe working

conditions did not amount to a substantial and specific danger to public health or

safety. ID at 8-10.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. On review, the appellant disagrees with the

administrative judge’s findings and argues that the administrative judge violated

the appellant’s due process rights by issuing the initial decision 1 day after the

agency filed its motion to dismiss and dismissing the appeal before the appellant

had the opportunity to complete discovery. PFR File, Tab 1 at 8. The agency has

filed a response, and the appellant has filed a reply. PFR File, Tabs 3, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

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

that he exhausted his administrative remedies before OSC 2 and make nonfrivolous

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

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

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

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

action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a)

(1), (e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

Protected whistleblowing occurs when an appellant makes a disclosure that he

reasonably believes evidences a violation of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶ 52.

An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here, the administrative judge’s

orders did not provide the appellant with proper Burgess notice. IAF, Tabs 4, 8.

However, the agency’s narrative statement in its response to this appeal cured this

error by identifying what the appellant needed to allege to establish jurisdiction

over an IRA appeal. IAF, Tab 6 at 5-6; see Harris v. U.S. Postal Service,

112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative judge’s failure to

The administrative judge determined that the appellant exhausted all of his alleged

protected disclosures. ID at 6. The parties do not dispute this finding and we discern

no basis to disturb it.

provide an appellant with proper Burgess notice can be cured if the agency’s

pleadings or the initial decision contain the notice that was otherwise lacking).

The initial decision also advised the appellant of his jurisdictional burden.

ID at 5-6. But it contained errors. Specifically, the administrative judge

suggested that if the appellant made nonfrivolous allegations of jurisdiction,

he would be entitled to a hearing, at which he would have the burden of proving

jurisdiction by preponderant evidence. Id. The administrative judge also

indicated that the Board could consider the agency’s uncontradicted documentary

submissions to the extent they pertain to jurisdiction. ID at 6.

An appellant meets his jurisdictional burden in an IRA appeal and is

entitled to a hearing on the merits if, after exhausting his remedy with OSC,

he makes nonfrivolous allegations that he engaged in protected activity that was a

contributing factor in a personnel action. Graves v. Department of Veterans

Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). An appellant is not entitled to a

jurisdictional hearing in an IRA appeal; he is only entitled to a hearing once

jurisdiction is established, and that hearing is on the merits. Id. In deciding

whether an appellant has made nonfrivolous allegations sufficient to establish

jurisdiction, the Board may not “credit[] the agency’s interpretation of the

evidence.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369

(Fed. Cir. 2020). To the extent that the administrative judge suggested that the

appellant was required to prove jurisdiction by preponderant evidence, was

entitled to a hearing on jurisdiction, or had to counter the agency’s evidence

concerning jurisdiction with evidence of his own, as opposed to making

nonfrivolous allegations, these statements of the law were incorrect.

We find that the administrative judge’s errors do not warrant reversal in

this instance. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (determining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision). The

appellant was not prejudiced by the error, because both the agency’s narrative

response and the initial decision contained the core information he needed. That

information was the requirement that he make nonfrivolous allegations that he

made a protected disclosure that was a contributing factor in a personnel action.

IAF, Tab 6 at 5; ID at 6. Further, we have reviewed the administrative judge’s

determinations and, applying the proper standards, we agree that the appellant

failed to establish jurisdiction, as further discussed below.

The appellant failed to nonfrivolously allege that the agency violated a law, rule,

or regulation by failing to issue him a firearm.

The administrative judge found that the appellant failed to nonfrivolously

allege that he reasonably believed that the agency violated a law, rule, or

regulation when it failed to provide him with a firearm on duty. ID at 8. The

administrative judge reasoned that there was no law, rule, or regulation requiring

the arming of agency Security Guards. Id. Although the appellant disputes this

determination, we are not persuaded. PFR File, Tab 1 at 9-10.

The proper test for determining whether an employee had a reasonable

belief that his disclosures were protected is whether a disinterested observer with

knowledge of the essential facts known to, and readily ascertainable by, the

employee could reasonably conclude that the actions evidenced a violation of a

law, rule, or regulation, or one of the other conditions listed in 5 U.S.C. § 2302(b)

(8). Pridgen, 2022 MSPB 31, ¶ 52. In support of his allegation that he

reasonably believed that the agency was required to arm him, the appellant

referenced Department of Defense Instruction (DODI) 5525.15, his position

description, and a Security Guard vacancy announcement. IAF, Tab 5 at 62, 77,

Tab 10. Because it was not clear that DODI 5525.15 created such a requirement,

the administrative judge ordered the appellant to identify the exact provisions

stating that a Security Guard must be equipped with a weapon while on duty.

IAF, Tab 8 at 1-2. The appellant did not respond to that portion of the

administrative judge’s order. IAF, Tab 12 at 4-5. The administrative judge found

that the appellant failed to identify any provision within DODI 5525.15, his

position description, or the vacancy announcement that required agency Security

Guards to be armed. ID at 8. Rather, he reasoned that they merely required that

incumbents be qualified to carry and use firearms. Id. The appellant has not

challenged these findings on review, and we see no reason to disturb them.

The appellant also quoted Army Regulation 190-56, Section 6-14(a) to

support his reasonable belief concerning this disclosure. IAF, Tab 12 at 4, 31;

PFR File, Tab 1 at 8. That regulation states, in relevant part, that

“security guards will be provided with the weapons, ammunition and security

equipment needed to perform their assigned duties.” IAF, Tab 12 at 4, 31;

PFR File, Tab 1 at 8. The administrative judge found that a disinterested

observer would not have reasonably concluded that the agency violated this

regulation by not supplying a firearm. ID at 8. He explained that the regulation

applied only to the Department of the Army, and not to the Department of

Defense. Id. On review, the appellant argues that he reasonably believed that the

Army regulation applied to him because the patch worn on his uniform, and worn

generally by agency staff, said “Department of the Army.” PFR File, Tab 1 at 9.

He has submitted copies of what he represents were his uniform patches. Id. at 9,

14-15. Even considering this new argument for jurisdictional purposes, we still

find that the appellant failed to nonfrivolously allege that he reasonably believed

that Security Guards were required to carry firearms. 3

The appellant’s reading of the Army Regulation is not reasonable. The

vacancy announcement and position description identified the DCSA as the

employing agency. IAF, Tab 5 at 33, Tab 10 at 5. The position description

explicitly describes DCSA as “a separate Agency of the Department of Defense

(DoD) under the direction, authority, and control of the Under Secretary of

Defense for Intelligence.” IAF, Tab 5 at 3. Further, Executive Order 13869,

The appellant did not raise this argument or submit this evidence below. We have

considered the appellant’s new argument and evidence to the extent they implicate the

Board’s jurisdiction, because jurisdiction may be raised at any time during Board

proceedings. See Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016).

which established the DCSA, makes clear that the agency is “[s]ubject to the

authority, direction, and control of the Secretary of Defense.” Exec. Order No.

13869, § 2(c)(i), 84 Fed. Reg. 18125, 18125-26 (2019). No reasonable person in

the appellant’s position, having available such unambiguous information that he

was employed by the DCSA, could believe that the fact that he wore a

Department of the Army badge changed his employing agency. So, we agree with

the administrative judge that the appellant failed to nonfrivolously allege a

reasonable belief that Army Regulation 190-56, Section 6-4(a), applied to him.

The appellant failed to nonfrivolously allege that his supervisor violated a law,

rule, or regulation when she initially informed the appellant that “he could not

quarantine [after a secondary exposure to COVID-19] for staffing reasons.”

The appellant argued below and on review that the agency violated

COVID-19 safety protocols when it initially denied his request to quarantine for

14 days after he worked with a coworker who had been exposed to COVID-19,

even though the coworker had not tested positive for the virus. IAF, Tab 5 at 6;

PFR File, Tab 1 at 7. In support of this belief that quarantining was required, the

appellant pointed to the Centers for Disease Control (CDC) guidance, which

“recommends a quarantine period of 14 days” following contact with persons

“infected” with COVID-19. IAF, Tab 12 at 4-5, 54-55. The administrative judge

found that the CDC guidelines were not mandatory, that they only concerned

exposure to someone who had tested positive for COVID-19, and that the

appellant was never forced to report to work during the 14-day quarantine

period. 4 ID at 9. The appellant does not dispute these findings and we see no

reason to disturb them.

Further, the administrative judge correctly found that the appellant never

made a disclosure concerning the alleged violation of COVID-19 protocols.

Although the initial decision cited the reasonable belief test to determine whether the

appellant made a protected disclosure, the administrative judge does not appear to have

applied the test to this disclosure. ID at 7-9. We therefore modify the initial decision

to clarify the administrative judge’s findings according to this standard.

ID at 8. He reasoned that the appellant merely asked his supervisor “to contact

her supervisor for further direction” on whether he should quarantine after

working with the coworker. ID at 8-9. The appellant does not dispute the

administrative judge’s findings in this regard, and we discern no reason to disturb

them. PFR File, Tab 1 at 10, Tab 4 at 7-8. Moreover, when, as here, a disclosure

concerns a potential violation of law, as opposed to an event that has already

taken place, an appellant must prove that he reasonably believed the potential

wrongdoing was real and immediate. Covington v. Department of the Interior,

2023 MSPB 5, ¶ 38. The appellant has not alleged that, at the time he asked his

supervisor for further direction, he reasonably believed that his supervisor would

continue to insist he work despite his potential exposure.

Instead, the appellant argues that his supervisor’s response, i.e., that the

appellant “could not quarantine for staffing reasons,” was itself a violation and

that the supervisor’s retraction of that statement did not invalidate his disclosure.

PFR File, Tab 1 at 10. Again, the appellant has not alleged that he made any

disclosure regarding the COVID-19 protocols, and he has not alleged that

he disclosed that his supervisor’s statement violated the law. Therefore, we agree

that the appellant failed to nonfrivolously allege that he made a protected

disclosure regarding the COVID-19 protocols.

The appellant failed to nonfrivolously allege that the agency’s failure to provide

him with a firearm amounted to a substantial and specific danger to public health

or safety.

The appellant alleged below that he expressed to his supervisor that his

working conditions were unsafe because the agency failed to equip him with a

firearm. IAF, Tab 5 at 7, 25, 77. The administrative judge found that the

appellant did not disclose a substantial and specific danger to public health or

safety based on his concerns of a potential future incident in which he might be

unable to sufficiently protect agency employees from bad actors. ID at 9-10.

In support of this finding, the administrative judge reasoned that the likelihood of

harm was speculative rather than substantial and specific. ID at 10.

The Board has explained that disclosures regarding danger to the public

must be both substantial and specific to be protected. Schoenig v. Department of

Justice, 120 M.S.P.R. 318, ¶ 10 (2013). Factors to be considered in determining

whether a disclosed danger is sufficiently substantial and specific to be protected

include the likelihood of harm, when the alleged harm may occur, and the

potential consequences of the harm. Id. Disclosure of an imminent event is

protected, but disclosure of a speculative danger is not. Id.

On review, the appellant argues that shootings on various military bases in

2009, 2013, and 2014 give rise to a likelihood of impending harm. PFR File,

Tab 1 at 10-11. In Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652,

¶ 16 (2004), the Board found that an appellant’s disclosure did not identify a

substantial and specific danger in similar circumstances. Specifically,

the appellant alleged that, due to the security threat after September 11, 2001,

Security Guards’ lives and the lives of those they protected could have been in

danger if they were attacked because their weapons were not fully loaded. Id.

The Board reasoned that the appellant’s disclosure involved speculation that there

could possibly be danger at some point in the future, which was insufficient.

Id., ¶ 17. Here, we find that the appellant’s concern of unsafe working conditions

is indistinguishable from Mogyorossy and, therefore, too speculative to be

protected. Id. We are not persuaded by the appellant’s argument that, because

shootings occurred on military bases in 2009, 2013, and 2014, he reasonably

believed that there was an imminent risk of violence in 2021 that could be

lessened by giving him a firearm. Thus, we agree with the administrative judge

that the appellant failed to nonfrivolously allege that he disclosed a substantial

and specific danger to public health or safety.

The administrative judge did not violate the appellant’s due process rights.

The appellant argues on review that the administrative judge violated his

due process rights by issuing the initial decision 1 day after the agency filed its

motion to dismiss, which was 9 days before the appellant’s response was due.

PFR File, Tab 1 at 8. A party typically has 10 days to object to an opposing

party’s motion. IAF, Tab 2 at 3-4; 5 C.F.R. § 1201.55(b). Here, because the

agency’s motion to dismiss was filed 1 day prior to the issuance of the initial

decision, it is not clear to us that the administrative judge was aware of the

agency’s motion when he dismissed the appeal. He did not reference the

agency’s motion in the initial decision, nor indicate that he was granting any such

motion.

Nonetheless, it is error when, as here, an administrative judge issues

an initial decision without notifying the parties of the date when the record on

jurisdiction will close. IAF, Tab 2 at 2-3, Tabs 4, 7-8; Fidler v. U.S. Postal

Service, 53 M.S.P.R. 440, 442, 444 (1992). An administrative judge’s procedural

error is of no legal consequence unless it is shown to have adversely affected a

party’s substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124,

127 (1981). The appellant had the opportunity to file the instant petition for

review disputing both the initial decision and the agency’s motion to dismiss, and

we have considered all of his arguments and evidence on review. Therefore, the

administrative judge’s error does not provide a basis to reverse the initial

decision.

The appellant also argues that the administrative judge violated his due

process rights by dismissing the appeal before he had the opportunity to complete

discovery. PFR File, Tab 1 at 8. While the appellant asserts that “discovery was

in progress,” he does not indicate whether he made discovery requests to the

agency, or if it owed him responses. He also has not indicated what information

he was seeking, and there is no motion to compel in the record. Therefore,

we cannot discern whether any alleged error by the administrative judge

prejudiced the appellant’s rights. See Searcy v. Department of Commerce,

114 M.S.P.R. 281, ¶ 14 n.* (2010) (concluding that an administrative judge’s

failure to rule on an appellant’s motions regarding discovery was harmless

because the appellant did not indicate how the information contained in the

discovery sought was relevant and material to the dispositive jurisdictional issue).

In the absence of evidence of such prejudice, we discern no reason to reverse the

initial decision.

Accordingly, we affirm the administrative judge’s determination that the

Board lacks jurisdiction over this appeal, as modified above.

NOTICE OF APPEAL RIGHTS 5

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

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.

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. 6 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

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.