Opinion

Eric Williams v. Department of the Navy

Court: Merit Systems Protection Board
Filed: May 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC WILLIAMS, DOCKET NUMBER

Appellant, AT-4324-16-0662-B-1

DEPARTMENT OF THE NAVY, DATE: May 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eric Williams , North Charleston, South Carolina, pro se.

Karissa Getz , Norfolk, 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 remand initial decision,

which denied his request for corrective action under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (codified as amended at

38 U.S.C. §§ 4301-4335) (USERRA). 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

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

MODIFIED to apply the doctrine of res judicata to the appellant’s claims arising

under the Veterans Employment Opportunities Act of 1998 (VEOA) and to

consider alleged disparate impact evidence as possible evidence of discriminatory

intent, we AFFIRM the initial decision.

BACKGROUND

In July 2015, the appellant, who is not currently a Federal employee,

applied for a GS-9/11 Contract Specialist position in the agency’s Defense

Acquisition Workforce (DAW) advertised under job announcement number

EA51102-12-1460254LZ1221318D. Williams v. Department of the Navy, MSPB

Docket No. AT-4324-16-0662-B-1, Remand File (RF), Tab 12 at 4; Williams v.

Department of the Navy, MSPB Docket No. AT-4324-16-0662-I-1, Initial Appeal

File (IAF), Tab 7 at 69. The agency ranked candidates into categories of

Qualified, Well Qualified, and Best Qualified, and referred the 11 candidates

ranked Best Qualified to the selecting official. IAF, Tab 7 at 66-68, 73.

The appellant was ranked Well Qualified, and so was not referred to the selecting

official. RF, Tab 12 at 4-5. All of the referred candidates were veterans.

IAF, Tab 7 at 67-68.

Around the same time that the agency issued the vacancy announcement

listed above, it received authority from the Secretary of Defense to hire for DAW

Contract Specialist positions using an expedited hiring authority (EHA).

Id. at 69-70, 78-79; Williams v. Department of the Navy, MSPB Docket No. DC-

3330-16-0292-B-1 (0292-B-1 Appeal), Remand File (0292 RF), Tab 9, Hearing

Compact Disc (HCD), Track 1 at 1:00 (testimony of the agency’s hiring official).

The agency decided not to select any of the Best Qualified candidates.

IAF, Tab 7 at 66. Instead, it decided to use the EHA. HCD, Track 1 at 1:00

(testimony of the agency’s hiring official). The agency began interviewing

candidates for recruitment under the EHA in July 2015. Id. Between September

2015 and July 2016, the agency used the EHA to make Contract Specialist

position job offers to 10 veterans, 2 of whom declined, and 17 nonveterans, 1 of

whom declined. IAF, Tab 7 at 65.

In January 2016, the appellant filed a Board appeal challenging the

nonselection and use of the EHA program under the VEOA. Williams v.

Department of the Navy, MSPB Docket No. DC-3330-16-0292-I-1 (0292-I-1

Appeal), Initial Appeal File (0292 IAF), Tab 1 at 1-3. Following a remand, an

administrative judge issued a remand initial decision, finding on the merits that

the appellant did not prove that the agency denied him the right to compete for

the position or violated his veterans’ preference rights when it appointed

nonpreference eligibles to the Contract Specialist position under the EHA

program. 0292-B-1 Appeal, Remand Initial Decision at 6-19 (Dec, 21, 2016).

The appellant filed a petition for review, and the Board affirmed the remand

initial decision. 0292-B-1 Appeal, Final Order, ¶¶ 1, 12, 14-17 (Aug. 25, 2022).

The appellant sought review in the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit), which affirmed the Board’s decision. Williams v. Department

of the Navy, No. 2023-1010, 2023 WL 3373578 (Fed. Cir. May 11, 2023).

In July 2016, the appellant filed the instant appeal, in which he repeated his

claims from the prior VEOA Appeal and argued that the agency discriminated

against him based on his military service when it did not select him for the

GS-9/11 Contract Specialist position. IAF, Tab 1 at 1-5. The administrative

judge dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision

at 1, 3. The appellant filed a petition for review. Williams v. Department of the

Navy, MSPB Docket No. AT-4324-16-0662-I-1, Petition for Review (PFR) File,

Tab 1. The Board granted the petition for review, found that the appellant

established jurisdiction over his USERRA appeal, vacated the initial decision, and

remanded the appeal for a determination on the merits. PFR File, Tab 5, Remand

Order.

After holding a hearing, the administrative judge issued a remand initial

decision in which she denied corrective action. RF, Tab 24, Remand Initial

Decision (RID) at 2, 6. She found that the appellant did not prove that his

placement on the Well Qualified (as opposed to Best Qualified) list or the agency

decision to hire using an EHA was motivated by his prior military service.

RID at 5-6. She found that the appellant’s remaining arguments were outside the

Board’s USERRA jurisdiction and adjudicated in his prior VEOA appeal of the

nonselection. RID at 3-6 & n.1.

The appellant has filed a petition for review. Williams v. Department of the

Navy, MSPB Docket No. AT-4324-16-0662-B-1, Remand Petition for Review

(RPFR) File, Tab 1. He reiterates that he should have been ranked as “Best

Qualified” and that the agency’s nonselection of veterans for the position was the

result of intentional discrimination and had a disparate impact on veterans. RPFR

File, Tab 1 at 4-7; RF, Tab 21. He argues for the first time that the agency

preselected candidates for the position instead of using its EHA. RPFR File,

Tab 1 at 7. The agency has filed a response to which the appellant has replied.

RPFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

We modify the initial decision to apply the doctrine of res judicata to the

appellant’s VEOA claims.

The administrative judge found that the Board previously decided several

of the appellant’s arguments in a VEOA appeal concerning his nonselection for

the same position at issue here. RID at 3 n.1. As a result, she did not consider

the appellant’s allegations that the agency should have rated him among the Best

Qualified due to his service-connected disability; denied him a right to compete

by failing to make a selection from the certificate for announcement number

EA51102-12-1460254LZ1221318D, which consisted entirely of veterans; failed

to use pass-over procedures to hire a nonveteran over him; and failed to follow

necessary procedures to use the EHA program. RID at 3 n.1, 4. In making this

decision, the administrative judge did not expressly apply any particular legal

doctrine. However, she most likely intended to rely on the doctrine of

adjudicatory efficiency, under which an administrative judge may dismiss an

appeal that raises claims raised in an earlier appeal after the initial decision in the

earlier appeal has been issued, but before the full Board has acted on the

appellant’s petition for review. Zgonc v. Department of Defense, 103 M.S.P.R.

666, ¶ 6 (2006), aff’d per curiam, 230 F. App’x 967 (Fed. Cir. 2007).

We agree with the administrative judge’s decision not to consider these

claims on the merits. However, we modify the initial decision to find that the

appellant’s VEOA claims should now be dismissed based on the doctrine of res

judicata. Under that doctrine, a valid final judgment on the merits of an action

bars a second action involving the same parties or their privies based on the same

cause of action. Zgonc, 103 M.S.P.R. 666, ¶ 8. The doctrine precludes the

parties from relitigating issues that were, or could have been, raised in the prior

action and it applies when (1) the prior decision was rendered by a forum with

competent jurisdiction; (2) the prior decision was a final decision on the merits;

and (3) the same cause of action and the same parties or their privies were

involved in both cases.

After the remand initial decision was issued in the instant appeal, the Board

denied the appellant’s petition for review of the remand initial decision in the

0292 Appeal, and the Federal Circuit affirmed the Board’s decision. Williams,

2023 WL 3373578; 0292-B-1 Appeal, Final Order, ¶ 1. The remand initial

decision in the 0292 Appeal, which denied corrective action on the same VEOA

claims the appellant sought to raise here, is now final. 0292-B-1 Appeal, Remand

Initial Decision at 12-14, 19; see 5 C.F.R. § 1201.113(b) (providing that an initial

decision becomes final when the Board issues its last decision denying a petition

for review). The prior appeal involved the same parties and the Board had

jurisdiction over the claims. 0292-I-1 Appeal, Remand Order, ¶¶ 9-15 (Aug. 12,

2016). So, the requirements of res judicata are met. Accordingly, we decline to

grant review based on the appellant’s claims that the agency should have rated

him among the Best Qualified due to his service -connected disability, denied him

a right to compete by failing to make a selection from the certificate consisting of

veterans, failed to use pass-over procedures in hiring a nonveteran over him, had

no legitimate reason to cancel the “veteran only” certificate of eligibles, and

failed to follow EHA procedures. RPFR File, Tab 1 at 4-5, 12-16. Instead, we

dismiss these claims.

The administrative judge correctly found that the appellant did not establish that

his uniformed service was a motivating or substantial factor in his nonselection.

The administrative judge found that the appellant’s remaining claims did

not evidence that his military service was a motivating factor in the nonselection.

RID at 5-6. The appellant appeared to argue below and on review that the

agency’s decision to cancel the certificate of eligibles and use the EHA

discriminated against veterans or had a disparate impact on veterans. RF, Tab 22

at 4, 6; RPFR File, Tab 1 at 5. The administrative judge found that a disparate

impact claim is not cognizable under USERRA, but even considering it as

circumstantial evidence of intentional discrimination, the appellant did not

establish motivating factor, because the agency used the EHA process to fill the

vacancies with both veteran and nonveteran applicants. RID at 5 -6.

In a USERRA discrimination claim, an appellant “bear[s] the initial

burden” of proving that his “military service was a ‘substantial or motivating

factor’” in the agency’s action. Sheehan v. Department of the Navy, 240 F.3d

1009, 1013 (Fed. Cir. 2001) (citation omitted). Military service is a substantial or

motivating factor in an employment decision “if the employer ‘relied on, took

into account, considered, or conditioned its decision’ on the employee’s military-

related absence or obligation.” See Erickson v. U.S. Postal Service, 571 F.3d

1364, 1368 (Fed. Cir. 2009) (citation omitted). The appellant may rely on “direct

or circumstantial evidence.” Sheehan, 240 F.3d at 1014 (citations omitted).

Circumstantial evidence may include “proximity in time between the employee’s

military activity and the adverse employment action, inconsistencies between the

proffered reason and other actions of the employer, an employer’s expressed

hostility towards members protected by the statute together with knowledge of the

employee’s military activity, and disparate treatment of certain employees

compared to other employees with similar work records or offenses.” Id. “In

determining whether the employee has proven that his protected status was part of

the agency’s motivation for its conduct, all record evidence may be considered,

including the agency’s explanation for the actions taken.” Id.

The first factor is “proximity in time between the employee’s military

activity and the adverse employment action.” Sheehan, 240 F.3d at 1014. As the

administrative judge noted, the record reflects neither that the appellant’s uniform

service was recent nor even when it occurred. RID at 2. The appellant has not

clarified on review when he last performed military service. We therefore agree

with the administrative judge that the first factor does not support the inference of

discriminatory motivation in violation of USERRA. See, e.g., Jones v.

Department of Health and Human Services, 718 F. App’x 958, 961 (Fed. Cir.

2017) (finding 47 years too remote to raise an inference of discriminatory

motive). 2

The second factor looks at “inconsistencies between the proffered reason

and other actions of the employer.” Sheehan, 240 F.3d at 1014. Here, the

administrative judge determined the agency decided not to select any candidate

from the referred candidates and instead filled the vacancies using the EHA

program. RID at 3; IAF, Tab 7 at 66. The Board previously found that the use of

the EHA did not violate VEOA because appointments could be made under the

EHA program without regard to veterans’ preference. 0292-B-1 Appeal, Final

Order, ¶¶ 13, 16-17 (citing 5 U.S.C. § 3304(a)(3) (permitting agencies to appoint

without regard to veterans’ preference requirements when the Office of Personnel

Management has determined there is a “severe shortage” of candidates” . . .

or . . . a critical hiring need”); 10 U.S.C. § 1705(f) (permitting the Secretary of

Defense to hire under 5 U.S.C. § 3304 based on “a shortage of candidates or . . . a

critical hiring need”)). This finding is not the same as finding the agency’s

justification was valid in the USERRA context. So, we consider the agency’s

brief explanation in the context of the Sheehan factors.

The administrative judge credited the selecting official in finding that the

agency made several selections using the EHA process. RID at 3; RF, Tab 12

at 13. The agency did not call any witnesses to testify at the hearing in the

instant appeal. RF, Tab 20 at 2. Although the agency presented witnesses at the

hearing in the appellant’s VEOA Appeal, a different administrative judge heard

that testimony. Assessment of the probative value of hearsay evidence

necessarily depends on the circumstances of each case. Borninkhof v. Department

of Justice, 5 M.S.P.R. 77, 83-87 (1981). The following factors affect the weight

to be accorded to hearsay evidence: (1) the availability of persons with firsthand

knowledge to testify at the hearing; (2) whether the statements of the out-of-court

The Board can rely on unpublished Federal Circuit decisions that it finds persuasive,

as we do here. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).

declarants were signed or in affidavit form, and whether anyone witnessed the

signing; (3) the agency’s explanation for failing to obtain signed or sworn

statements; (4) whether declarants were disinterested witnesses to the events, and

whether the statements were routinely made; (5) consistency of declarants’

accounts with other information in the case, internal consistency, and their

consistency with each other; (6) whether corroboration for statements can

otherwise be found in the agency record; (7) the absence of contradictory

evidence; (8) credibility of declarant when she made the statement attributed to

her. Id. at 87.

Although the administrative judge here did not specifically identify the

record evidence in addressing the agency’s use of its EHA, it is nonetheless

evident that she relied on an affidavit submitted by the hiring official. RID at 3;

IAF, Tab 7 at 66. Further, although the administrative judge did not identify the

Borninkhof factors in assessing the weight to be accorded this declaration,

she clearly considered them. For example, although the hiring official did not

testify at the hearing in the instant appeal, the administrative judge found her

declaration consistent with, supported by, and uncontradicted by the record. RID

at 5; IAF, Tab 7 at 65, 76-83. The hiring official’s declaration, which is sworn

under penalty of perjury, is also consistent with her testimony during the hearing

in the 0292 Appeal. 0292 RF, Tab 9, HCD, Track 1 at 00:55-1:29 (testimony of

the hiring official).

The appellant challenges the hiring official’s credibility by arguing that her

declaration falsely stated the agency decided to use the EHA on October 6, 2015,

when agency evidence showed they used EHA beginning in June 2015.

RPFR File, Tab 1 at 7; RF, Tab 22 at 11-12; IAF, Tab 7 at 65-66. He reargues

that this amounts to “direct evidence of intentional discriminatory motive.”

RPFR File, Tab 1 at 13; RF, Tab 22 at 11-12. Contrary to the appellant’s

assertion on review, the hiring official did not state that in October 2015 the

agency decided to use the EHA to appoint to the position. Instead, she declared

that the agency decided in October 2015 not to select any of candidates referred

under job announcement number EA51102-12-1460254LZ1221318D to fill the

specific vacancy announcement at issue. IAF, Tab 7 at 66. During her testimony

on the 0292 Appeal, she explained that the agency did not interview or hire

anyone from the referral list because it recognized the names from prior

certificates, and had either interviewed the candidates in connection with those

certificates or determined they were not qualified for the position. 0292 RF, Tab

9, HCD, Track 1 at 00:59, 01:22 (testimony of the hiring official).

The undisputed evidence shows that the agency authorized use of the EHA

process in March 2015. IAF, Tab 7 at 76-83. The record further shows that the

agency began interviews using the EHA process to fill Contract Specialist

positions in July 2015. Id. at 65. Although the agency has not identified which

vacancy announcement each EHA selectee filled, these facts do not contradict the

hiring official’s statement. Id. at 65-66. Moreover, between September 2015 and

July 2016, the agency offered 10 veterans Contract Specialist positions with the

intention of appointing them under the EHA. Id.; 0292 RF, Tab 9, HCD, Track 1

at 01:01, 01:26 (testimony of the hiring official). We conclude that the

administrative judge gave the hiring official’s statement appropriate weight. We

discern no basis to disturb the administrative judge’s determination that the

agency offered consistent explanations for the appellant’s nonselection. RID at 5.

The appellant also argued below, and reasserts on review, that the agency’s

decision to cancel the certificate of eligibles and use the EHA had a disparate

impact on veterans. RF, Tab 22 at 4, 6; RPFR File, Tab 1 at 5. The Board has

held that USERRA does not provide for a claim under a disparate impact theory

because intent is a required element of proof to establish discrimination under

USERRA. Harellson v. U.S. Postal Service, 115 M.S.P.R. 378, ¶¶ 12-19 (2011).

But a known disparate impact of an agency policy or practice may be some

evidence of discriminatory intent. Id., ¶ 21. Along these lines, the appellant

observes that the hiring certifications for job announcement number EA51102-12-

1460254LZ1221318D included only veterans, but the agency ultimately hired

both veterans and nonveterans. RPFR File, Tab 1 at 5-8; e.g., IAF,

Tab 7 at 67-68.

Had the agency used the original certificate of Best Qualified candidates,

any selectee from that certificate would have been a veteran. IAF,

Tab 7 at 67-68. However, the appellant has not alleged, nor provided any

evidence showing, that the agency knew that its use of the EHA would result in

the hiring of nonveterans. The appellant tries to address this issue by suggesting

that, at the time the agency decided to use the EHA, it knew that all the

candidates on the first certificate were veterans. PFR File, Tab 1 at 10-11, 14.

But that is not the same as proceeding forward with the EHA process despite

knowing that it would exclude veterans. See Harellson, 115 M.S.P.R. 378, ¶ 20

n.5 (explaining that the agency must know of the disparate impact of the policy

and choose to go forward with it anyway, thus providing evidence of intent and

not merely a disparity in effect). Accordingly, we decline to read any

discriminatory intent into the agency’s decision. Because the administrative

judge’s analysis did not consider the evidence of disparate impact as possible

evidence of discriminatory intent, we modify the initial decision to do so on

review. Nonetheless, we agree with her conclusion that the second Sheehan

factor does not support the appellant’s claims. RID at 5.

The third Sheehan factor is the “expressed hostility towards members

protected by the statute together with knowledge of the employee’s military

activity.” 240 F.3d at 1014. The administrative judge found that the agency

expressed no hostility toward those having performed military service. RID at 5.

The appellant has not disputed this finding. The third factor thus does not

support the appellant’s claims.

The fourth factor indicating discriminatory motivation is the “disparate

treatment” of similarly situated applicants. See Sheehan, 240 F.3d at 1014. The

administrative judge found no evidence that the qualifications of veterans and

non-veterans were assessed differently. RID at 5-6; RF, Tab 7 at 65-66. The

appellant does not challenge this conclusion, but instead argues that those who

applied under job announcement number EA51102-12-1460254LZ1221318D were

not interviewed. RPFR File, Tab 1 at 8, 16. As noted above, the agency selected

both veterans and nonveterans for Contract Specialist positions. IAF,

Tab 7 at 65. It also interviewed both veterans and nonveterans candidates when

hiring using its EHA authority. Id. The appellant’s arguments on review do not

suggest any discriminatory animus. Accordingly, we agree with the

administrative judge that the appellant did not prove that his nonselection was

motivated by his military service. RID at 5-6.

We decline to consider the appellant’s new argument.

The appellant argues for the first time on review that the agency

preselected candidates for the position instead of using its EHA. RPFR File,

Tab 1 at 7. 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 v.

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

the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). Here, the

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

the administrative judge, and we need not consider it. In any event, the appellant

provides no explanation for how the alleged preselection related to his military

service. Preselection can give rise to a USERRA claim when coupled to unlawful

discrimination based on an individual’s current or past military service. Beck v.

Department of Navy, 997 F.3d 1171, 1187-88 (Fed. Cir. 2021). Preselection

alone, however, does not violate USERRA. Id. at 1188. As discussed above,

we agree with the administrative judge that the appellant did not prove that his

nonselection or the agency’s use of the EHA program was motivated by

antimilitary animus. Thus, the argument provides no basis to grant the

appellant’s petition for review.

Accordingly, we affirm the initial decision as modified above.

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

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).

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.

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