Opinion

April Pedretti v. Department of Veterans Affairs

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Status: Unpublished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

APRIL PEDRETTI, DOCKET NUMBER

Appellant, SF-0714-17-0696-I-1

DEPARTMENT OF VETERANS DATE: May 10, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

McRae Cleaveland , Bobby Devadoss , Esquire, and Megan Zeller , Esquire,

Dallas, Texas, for the appellant.

Eric Lazare , San Diego, California, 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 the agency’s demotion decision pursuant to the Department of Veterans

Affairs Accountability and Whistleblower Protection Act of 2017 (VA

Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73

(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

GRANT the petition for review and REVERSE the initial decision to the extent

the administrative judge sustained the demotion action. The appellant’s demotion

is REVERSED. We AFFIRM the initial decision to the extent the administrative

judge found that the appellant failed to prove her affirmative defenses of

discrimination based on disability and sex, as MODIFIED to apply the correct

standards applicable to those claims.

BACKGROUND

By a letter dated August 8, 2017, the agency proposed to remove the

appellant from her position as a GS-12 National Cemetery Administrator (NCA),

pursuant to 38 U.S.C. § 714, based on a charge of lack of proper oversight.

Initial Appeal File (IAF), Tab 4 at 19-21. The deciding official issued a decision

letter sustaining the charge and mitigating the removal penalty to a demotion to a

GS-9 Budget Analyst position, effective September 17, 2017. Id. at 23-26. The

appellant timely filed the instant Board appeal challenging her demotion,

asserting that the charge and specifications were not supported by the record; the

agency action did not promote the efficiency of the Federal service; and the

agency decision was motivated by unlawful discrimination. IAF, Tab 1 at 6.

After the appellant filed a motion withdrawing her request for a hearing

and requested a trial by submission, IAF, Tab 16, the administrative judge issued

a close of record order in which she identified the issues to be adjudicated, set

forth the applicable law and burdens of proof with respect to the charge and the

affirmative defenses, and ordered the parties to submit closing evidence and

argument, IAF, Tab 18.

In an initial decision based on the parties’ written submissions, the

administrative judge found that the agency proved the charge by substantial

evidence and that the appellant failed to prove her disability and sex

discrimination affirmative defenses. IAF, Tab 24, Initial Decision (ID) at 3-20.

The administrative judge further determined that, pursuant to 38 U.S.C.

§ 714(d)(2)(B), she was precluded from mitigating the penalty, and so, she

affirmed the demotion without addressing the reasonableness of the penalty. ID

at 11, 20-22.

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

and the agency has filed a response in opposition to the petition for review. 2

Petition for Review (PFR) File, Tabs 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant generally takes issue with the administrative

judge’s credibility determinations and argues that the agency failed to meet its

burden of proving all three specifications of the charge. PFR File, Tab 3 at 7-13.

She also argues that the agency’s chosen penalty was excessive and the agency’s

action did not promote the efficiency of the service. Id. at 17-18. Finally, she

challenges the administrative judge’s finding that she failed to establish her

affirmative defenses of discrimination based on her disability and sex. Id.

at 13-17.

With her petition for review, the appellant has included a number of exhibits,

including emails she exchanged with agency officials, a copy of a sworn affidavit, a

copy of the agency’s discovery responses, and a number of other documents related to

the demotion action, most of which were included in the record below and thus are not

new. PFR File, Tab 3 at 20-72; see Meier v. Department of the Interior , 3 M.S.P.R.

247, 256 (1980) (explaining that evidence that is already a part of the record is not

new). To the extent that the appellant submits documents that were not part of the

record below, the Board generally will not consider evidence submitted for the first

time on review absent a showing that it was unavailable before the record was closed

despite the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

214 (1980); 5 C.F.R. § 1201.115(d). Further, the submitting party must show that the

evidence is material. See Okello v. Office of Personnel Management, 112 M.S.P.R. 563,

¶ 10 (2009). All of the newly submitted documents predate the initial decision, and the

appellant does not assert that any of the documents were first obtained after the initial

decision was issued. See Avansino, 3 M.S.P.R. at 214. In addition, the appellant has

not shown that any of the evidence is of sufficient weight to change the outcome of the

appeal. Accordingly, we have not considered these documents.

The demotion action must be reversed based on recent U.S. Court of Appeals for

the Federal Circuit (Federal Circuit) and Board precedent.

We do not reach the parties’ arguments regarding the charge and penalty

because we conclude that the agency improperly demoted the appellant for

conduct predating the VA Accountability Act. See Wilson v. Department of

Veterans Affairs, 2022 MSPB 7, ¶ 26 (handling the arguments on review similarly

in a section 714 appeal in which the action was reversed because the charged

conduct predated the VA Accountability Act). After the initial decision in this

appeal was issued, the Board and the Federal Circuit issued precedential decisions

addressing the application of the VA Accountability Act to events that occurred

before the date of its enactment. Based on that precedent, which was not

available to the administrative judge when she issued the initial decision, we

conclude that the appellant’s demotion must be reversed.

In Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1374, 1380-82

(Fed. Cir. 2020), the Federal Circuit concluded that 38 U.S.C. § 714 cannot be

applied to events occurring before its enactment because Congress did not

authorize its retroactive application, and the statute’s lowered substantial

evidence standard of proof and elimination of the Board’s authority to mitigate

the penalty detrimentally affected Dr. Sayers’s property right to continued

employment. The court also acknowledged that the notice of proposed removal in

that case had not been issued until after the enactment of the VA Accountability

Act but determined that “[s]ection 714’s impermissible retroactive effect on

Dr. Sayers’s substantive employment right is not eliminated by the prospective

application of § 714’s procedures.” Id. at 1381. Consequently, the court held

that the agency may not use the VA Accountability Act to discipline an employee

for matters that occurred before its effective date, June 23, 2017, and vacated

Dr. Sayers’s removal. Id. at 1380-82.

As in Sayers, in this case, the agency removed the appellant under the VA

Accountability Act based entirely on misconduct that predated the Act’s June 23,

2017 enactment date. IAF, Tab 4 at 19-21, 23-26. Additionally, as the court held

in Sayers, the fact that the proposal and decision letters were issued after the

enactment date is of no consequence because 38 U.S.C. § 714 may not be applied

to conduct that predates the passage of the Act, irrespective of the date that the

agency action was proposed and effectuated. Sayers, 954 F.3d at 1380-81.

Accordingly, the agency’s charge is not sustained, and the appellant’s demotion

must be reversed. See id. at 1380-82; Wilson, 2022 MSPB 7, ¶ 33.

We agree with the administrative judge that the appellant failed to prove her

discrimination affirmative defenses, but we modify the initial decision to clarify

the proper standard applicable to these claims.

Sex Discrimination

In the initial decision, the administrative judge determined that the

appellant failed to establish her affirmative defense of sex discrimination,

concluding that none of the statements she identified evinced a discriminatory

animus and the appellant failed to provide any evidence that she or other female

employees were treated worse than their male counterparts. ID at 18-20.

Consequently, the administrative judge determined that the appellant failed to

provide any evidence that her sex was a motivating factor in the agency’s

decision to demote her, and thus did not meet her burden of proof with respect to

this affirmative defense. ID at 20.

On review, the appellant argues that the administrative judge afforded

insufficient weight to credible evidence of discriminatory animus by the

appellant’s supervisor who initiated the investigation that eventually resulted in

her demotion. PFR File, Tab 3 at 15-16. Specifically, she argues that the

administrative judge “seemingly brush[ed] [] away” her supervisor’s statement

that “the last woman we had here barely met my expectations,” and his

instruction to the appellant not to “screw it up.” Id. at 16.

In an order setting forth the appellant’s burdens for her affirmative

defenses, the administrative judge identified the standard set forth in Savage v.

Department of the Army, 122 M.S.P.R. 612 ¶¶ 41-42, 51 (2015), as clarified by

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), as the

standard applicable to the appellant’s sex discrimination claim. IAF, Tab 9

at 2-5. She similarly applied this standard in the initial decision. ID at 18-19.

Following the issuance of the initial decision in this case, the Board issued

Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30,

which overruled parts of Savage and clarified the proper analytical framework to

be applied to affirmative defenses of Title VII discrimination and retaliation.

Based on our review of the record, we conclude that the outcome of this

appeal under the standard set forth in Pridgen would be the same as that arrived

at by the administrative judge. Regarding the appellant’s argument that the

administrative judge improperly dismissed her supervisor’s statement to her that

“the last woman we had here barely met my expectations,” and his warning that

the appellant not “screw it up,” the appellant argues that the administrative judge

seemingly dismissed the offending statement on temporal grounds. PFR File,

Tab 3 at 16. The record does not support the appellant’s assertion.

After noting that the supervisor made the statement shortly after the

appellant became the new NCA in November 2015, the administrative judge

pointed out that the supervisor appeared to have made the statement in the context

of explaining what his expectations were of all cemetery directors. ID at 19. The

administrative judge observed that, contextually understood, the supervisor’s

harsh statements about the prior NCA’s performance and his cautionary statement

to the appellant not to “screw it up” were indicative of his stern management

style, generally, irrespective of the sex of his subordinates. ID at 19. This

reading is bolstered by the administrative judge’s observation that one of the

appellant’s comparators for her disability discrimination claim (who is male) also

alleged that he was harassed by the supervisor and was also eventually proposed

for removal during the same time frame as the appellant, leading the

administrative judge to conclude that the supervisor was “apparently stern with

all of his employees.” ID at 20. Based on our review of the record, we agree

with the administrative judge’s finding that there is no evidence that

discriminatory animus by the appellant’s supervisor influenced the deciding

official. Further, we find that the administrative judge appropriately considered

all of the relevant evidence. Consequently, we affirm the administrative judge’s

finding that the appellant failed to meet her burden of proving that sex

discrimination played any part in the demotion action, as modified herein to apply

the standard set forth in Pridgen.

Disability Discrimination

As previously noted, the appellant raised an affirmative defense of

disability discrimination due to her post-traumatic stress disorder (PTSD)

condition based on failure to accommodate and disparate treatment theories. IAF,

Tab 12 at 6-7, Tab 21 at 10-13, 39-40. As the administrative judge correctly

observed, the Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act of 1973, which has incorporated the

standards of the Americans with Disabilities Act of 1990, as amended by the

Americans with Disabilities Act Amendments Act of 2008. ID at 13 n.3; Pridgen,

2022 MSPB 31, ¶ 35; Haas v. Department of Homeland Security, 2022 MSPB 36,

¶ 28. Therefore, we apply those standards here to determine if there has been a

Rehabilitation Act violation. Pridgen, 2022 MSPB 31, ¶ 35.

Regarding the appellant’s failure to accommodate claim, the administrative

judge concluded that the agency was not obligated to accommodate the appellant

because there was no evidence that she had requested any accommodation. ID

at 13-15. We agree with this finding. In finding that the appellant did not prove

her failure to accommodate claim, the administrative judge observed that the

appellant was granted all the leave she requested for her counseling appointments

for her condition, and further, that her requests to attend a funeral and for

temporary housing were not requests for a reasonable accommodation. ID

at 14-15.

On review, the appellant concedes that she did not request a reasonable

accommodation from the agency but argues that the agency nonetheless had an

obligation to investigate any “facts and/or circumstances that give rise to a link

between an employee’s medical condition and issues or problems in the

workplace.” PFR File, Tab 3 at 15. Consequently, she appears to suggest that the

onus was on the agency to initiate the interactive process and to offer some sort

of unstated accommodation, and that by failing to do so, the agency failed to

accommodate her PTSD condition. Id. The Rehabilitation Act requires an

agency to provide reasonable accommodation to the known physical or mental

limitations of an otherwise qualified individual with a disability unless the agency

can show that accommodation would cause an undue hardship on its business

operations. Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014).

An employee only has a general responsibility to inform her employer that she

needs accommodation for a medical condition, and once an employee requests a

reasonable accommodation, the employer must engage in the interactive process

to determine an appropriate accommodation. Id., ¶ 12.

To trigger an agency’s obligation, an employee needs to link her request to

a medical condition. EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship under the Americans with Disabilities Act,

Question 1, Notice No. 915.002 (Oct. 17, 2002), available at https://

www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-

and-undue-hardship-under-ada . Because the appellant has conceded that she did

not request reasonable accommodation, we agree with the administrative judge

that she failed to meet her burden of establishing her disability discrimination

claim based on a failure to accommodate theory. ID at 15. She also has not

alleged any facts below or on review that would have informed the agency that

she believed her PTSD condition required accommodation, nor has she asserted

that she made any request for accommodation of her PTSD condition that the

agency did not grant.

The administrative judge also rejected the appellant’s disparate treatment

disability discrimination claim, concluding that she failed to present any evidence

that any similarly situated employees without a disability were treated more

favorably than the appellant. ID at 15-17. Further, the administrative judge

determined that the appellant had not provided any evidence that the deciding

official had any knowledge of her PTSD condition at the time she decided to

sustain the charge and mitigate the removal to a demotion. ID at 17.

Additionally, the administrative judge considered the appellant’s argument

that she and a number of other employees with PTSD were treated less favorably

because of their PTSD. ID at 16-17. The same standards and methods of proof

set forth above for the appellant’s Title VII claim apply to her disability

discrimination claim based on alleged disparate treatment. Pridgen, 2022 MSPB

31, ¶¶ 40, 42. One way an appellant may establish a discrimination claim is

through comparator evidence, or evidence relating to the allegedly more favorable

treatment of similarly situated employees outside her protected group. Id., ¶¶ 24,

27. To be similarly situated, comparators must have reported to the same

supervisor, been subject to the same standards governing discipline, and engaged

in conduct similar to the appellant’s without differentiating or mitigating

circumstances. Id., ¶ 27.

Although she did not have the benefit of the Board’s Pridgen decision, the

administrative judge’s analysis was consistent with Pridgen. ID at 14-17. She

evaluated the sworn affidavits from purported comparator employees but

concluded the following: (1) one of the purported comparators was not similarly

situated to the appellant because he was not supervised by the same supervisor as

the appellant; (2) another comparator, who was supervised by the appellant’s

supervisor and who had PTSD, was a valid comparator, but that employee’s

sworn affidavit indicated that the supervisor was intensely critical of all of his

subordinates, including those without disabilities, and so that comparator’s

affidavit did not provide any evidence of discrimination; and (3) the appellant did

not indicate whether any of the final group of potential comparators were

individuals with a disability, so the administrative judge could not determine

whether they were valid comparators. ID at 16; IAF, Tab 21 at 90-110. Further,

the administrative judge considered, and rejected, the appellant’s argument that

several statements by her supervisor concerning PTSD being “50%

service-connected” and the appellant being “too sensitive” were evidence of

discriminatory animus. ID at 15-16. Finally, the administrative judge noted that

the appellant had not provided any evidence that the deciding official was aware

of the appellant’s disability when she decided to sustain the charge and mitigate

the removal penalty to a demotion. ID at 17.

Other than generally disagreeing with the weight the administrative judge

assigned to the written affidavits of the purported comparator employees, the

appellant does not specifically address these findings on review, and we agree

with the administrative judge that the record is devoid of any evidence tending to

show that the agency was motivated by discriminatory animus when it proposed

or effectuated the demotion action at issue in this appeal. PFR File, Tab 3

at 10-11. We discern no basis to disturb the administrative judge’s conclusions,

and we affirm her finding that the appellant failed to prove this affirmative

defense, as modified to incorporate the correct applicable standard set forth in

Pridgen. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.

ORDER

We ORDER the agency to cancel the demotion action and to reinstate the

appellant to her former position as a GS-12 National Cemetery Administrator,

effective September 17, 2017. See Kerr v. National Endowment for the Arts ,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

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. 4 The court of appeals must receive your

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

5 U.S.C. § 7703(b)(1)(B).

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

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

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.