Opinion

Josep Cannavo v. General Services Administration

Court: Merit Systems Protection Board
Filed: May 17, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

holding that in the absence of relevant comparator evidence, Carr factor 3 cannot favor the Government

How later courts described this case

holding that in the absence of relevant comparator evidence, Carr factor 3 cannot favor the Government

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH CANNAVO, DOCKET NUMBER

Appellant, NY-1221-14-0113-W-1

GENERAL SERVICES DATE: May 17, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jesse C. Rose , Esquire, Astoria, New York, for the appellant.

Nicole Ludwig , Esquire, East Williston, New York, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

denied his request for corrective action in his individual right of action (IRA)

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

this Final Order as set forth in ¶¶ 11, 13-17 below, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant is a supervisory GS-14 Senior Property Manager for the

agency. Initial Appeal File (IAF), Tab 1 at 1, 9. On September 17, 2012, he met

with his immediate supervisor to discuss the performance ratings that he had

proposed for his subordinates that year. IAF, Tab 33 at 204-05; Hearing Compact

Disc, September 27, 2016 (HCD 1) at 12:10 (testimony of the appellant). The

appellant’s supervisor directed him to lower several of the ratings, and the

appellant did so the same day. IAF, Tab 33 at 210; HCD 1 at 12:50 (testimony of

the appellant). However, on November 14, 2012, the appellant again entered the

agency’s rating system and, unbeknownst to his supervisor, changed some of the

ratings back to what he had originally proposed. IAF, Tab 5 at 55-56; HCD 1

at 24:50 (testimony of the appellant).

¶3 The following week, on November 19, 2012, the appellant’s supervisor met

with him about an unrelated matter. 2 She informed the appellant that an audit had

The administrative judge identified this meeting as taking place on November 15,

2012. IAF, Tab 55, Initial Decision at 7. We find that it is immaterial which of the two

dates this meeting took place.

revealed that one of his subordinates was failing to implement proper

administrative controls for his credit card activity, and she instructed the

appellant to issue this subordinate a letter of reprimand. IAF, Tab 33 at 13-15,

295. The appellant protested that his supervisor was singling out this individual

for discipline even though numerous other employees had engaged in the same

misconduct. Id. at 295. The appellant’s supervisor replied that the appellant was

not to concern himself with those other employees. Id.

¶4 On November 28, 2012, the appellant’s second-level supervisor discovered

that the appellant had changed his subordinates’ performance ratings 2 weeks

earlier. He admonished the appellant verbally, warning him that the penalty for

disobeying a supervisor ranges from reprimand to suspension. IAF, Tab 5 at 59.

Nevertheless, on December 6, 2012, the appellant contacted the agency’s human

resources department to inquire into the process for changing the performance

rating for yet another of his subordinates. Id. at 62. A human resources official

notified the appellant’s second-level supervisor of this contact. Id.

¶5 On December 13, 2012, the appellant’s first-level supervisor proposed to

suspend the appellant for 5 days because of the conduct surrounding the changed

performance ratings. Id. at 43-46. The charges essentially amounted to failure to

follow instructions and lack of candor. Id. On December 18, 2012, the appellant

sought assistance from the agency’s Inspector General (IG) regarding the

proposed suspension and the credit card audit. IAF, Tab 51 at 40-43. On

January 16, 2013, the appellant’s second-level supervisor issued his decision to

suspend the appellant for 5 days, beginning January 28, 2016. IAF, Tab 5

at 20-21.

¶6 The appellant then filed a complaint with the Office of Special Counsel

(OSC), alleging that the agency had retaliated against him for disclosures that he

had made to his immediate supervisor and to the IG. IAF, Tab 1 at 15, Tab 33

at 9-361. When OSC closed the file without taking corrective action, the

appellant filed this IRA appeal with the Board. IAF, Tab 1.

¶7 The administrative judge found that the Board has jurisdiction over the

appeal and held the appellant’s requested hearing. IAF, Tab 35, Tab 55, Initial

Decision (ID) at 1-2. Following the hearing, she issued an initial decision

denying corrective action on the merits. ID at 2, 19. She found that the

appellant’s November 19, 2012 disclosure to his supervisor that she was singling

out the appellant’s subordinate was protected. ID at 15. She also found that his

disclosure to the IG regarding his proposed suspension was not protected. Id.

She concluded that neither disclosure was a contributing factor in the 5-day

suspension. ID at 15-17. She further found that the agency proved by clear and

convincing evidence that it would have suspended the appellant notwithstanding

his disclosure to his supervisor. ID at 17-18. The administrative judge observed

that the appellant was attempting to challenge a May 28, 2013 letter of

performance counseling, but determined that he had not exhausted his

administrative remedies with OSC on this alleged personnel action. ID at 18.

¶8 The appellant has filed a petition for review, arguing that his 5-day

suspension was in retaliation for his refusal to obey an order that would have

required him to violate a directive pertaining to the agency’s Performance Plan

and Appraisal System, as well as the applicable collective bargaining agreement.

Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR

File, Tab 3. 3

ANALYSIS

¶9 To prove the merits of a claim of reprisal in an IRA appeal before the

Board, an appellant must show by preponderant evidence that he engaged in

protected activity under 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i),

(B), (C), or (D), and that the protected activity was a contributing factor in the

contested personnel action. Salerno v. Department of the Interior, 123 M.S.P.R.

230, ¶ 5 (2016). If the appellant proves his case, the agency will have an

We decline to disturb the administrative judge’s jurisdictional finding, which neither

party has challenged on review.

opportunity to show by clear and convincing evidence that it would have taken

the same personnel action even in the absence of the protected activity. Id.

Personnel Action

¶10 In her initial decision, the administrative judge addressed two alleged

personnel actions—the 5-day suspension and the letter of performance

counseling. ID at 16-18. She found that both of these were “personnel actions”

under 5 U.S.C. § 2302(a)(2). ID at 3-4. The administrative judge fully

adjudicated the appellant’s claim as to the 5-day suspension, but she found that

the appellant had failed to exhaust his administrative remedies concerning the

letter of counseling. ID at 15-18.

¶11 On review, the appellant does not challenge the administrative judge’s

finding on the exhaustion issue. Nevertheless, we modify the initial decision to

find that the letter of counseling did not constitute a personnel action or threat to

take a personnel action within the meaning of 5 U.S.C. § 2302(a)(2) because it

did not constitute formal discipline, there is no indication that it was placed in the

appellant’s personnel file, and it did not warn the appellant of any possible future

disciplinary or performance actions. IAF, Tab 33 at 285-88; see Special

Counsel v. Spears, 75 M.S.P.R. 639, 670 (1997) (declining to find that an oral

counseling was a personnel action); cf. Campo v. Department of the Army,

93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding a memorandum of warning that included a

threat of future disciplinary action was a personnel action).

Protected Activity and Contributing Factor

¶12 In her initial decision, the administrative judge identified two alleged

protected disclosures. She found that the November 19, 2012 conversation in

which the appellant told his supervisor that she was unfairly singling out one of

the appellant’s subordinates for discipline was protected because he reasonably

believed his supervisor was abusing her authority. ID at 15. The administrative

judge found that the appellant’s December 18, 2012 meeting with an IG official

regarding his proposed suspension was not protected. Id. She also found that

neither disclosure was a contributing factor in the 5-day suspension. ID at 16-17.

The appellant does not challenge these findings on review. Nevertheless, we

modify the administrative judge’s analysis as follows.

¶13 First, although we agree with the administrative judge that the appellant’s

November 15, 2012 disclosure was protected, we disagree that it was not a

contributing factor in his 5-day suspension. The administrative judge found that

the disclosure was not a contributing factor in the suspension because it was the

appellant’s second-level supervisor who resolved to take disciplinary action

against the appellant, and he was not even aware of the November 19, 2012

disclosure. ID at 16. The appellant’s first-level supervisor is the one who issued

the proposal letter, and she did so within 1 month of the appellant’s disclosure to

her. IAF, Tab 5 at 43-46.

¶14 The most common way of proving the contributing factor element is the

“knowledge/timing test.” Scoggins v. Department of the Army, 123 M.S.P.R. 592,

¶ 21 (2016). Under that test, an appellant can prove that his disclosure was a

contributing factor in a personnel action through evidence that the official taking

the personnel action knew of the whistleblowing disclosure and took the

personnel action within a period of time such that a reasonable person could

conclude that the disclosure was a contributing factor in the personnel action. Id.

Once an appellant has satisfied the knowledge/timing test, he has demonstrated

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

The facts here are sufficient to establish the contributing factor element under the

knowledge/timing test of 5 U.S.C. § 1221(e)(1). Although the appellant’s

first-level supervisor may have issued the proposal at the direction of someone

else who was unaware of the disclosure, this fact is irrelevant to the contributing

factor analysis and goes instead to the agency’s affirmative defense, which is

discussed below. See Bradley v. Department of Homeland Security, 123 M.S.P.R.

547, ¶ 15 (2016) (observing that an appellant may rely on an official’s

constructive knowledge of a protected disclosure to prove that it was a

contributing factor in a personnel action by demonstrating that an individual with

actual knowledge of the disclosure influenced the official who took the action).

¶15 Second, we disagree with the administrative judge that the appellant’s

December 18, 2012 meeting at the IG’s office was not protected. The

administrative judge found that this meeting was not a protected disclosure

because the appellant’s primary purpose was to seek assistance in challenging the

proposed suspension rather than to report any wrongdoing. ID at 15. As

pertinent here, the Whistleblower Protection Enhancement Act of 2012 (WPEA),

Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.

§ 2302(f)(1)(C)), amended the Whistleblower Protection Act by providing that an

individual’s “motive for making the disclosure” does not exclude it from

protection. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 3 (2014). 4

Further, the WPEA expanded the Board’s jurisdiction in IRA appeals to include

claims of reprisal for “cooperating with or disclosing information” to an IG,

activity which is protected under 5 U.S.C. § 2302(b)(9)(C). WPEA, Pub. L. No.

112-199, § 101(b)(1)(A), 126 Stat. 1465, 1465 (codified at 5 U.S.C. § 1221(a)).

Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure

of information to the IG or OSC is protected regardless of its content as long as

such disclosure is made in accordance with applicable provisions of law.

Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. We therefore find that

the appellant’s December 18, 2012 meeting at the IG’s office was protected

activity, without reaching the issue of whether any disclosures he made in the

meeting were protected.

¶16 Third, we agree with the administrative judge that the appellant’s

December 18, 2012 meeting was not a contributing factor in his 5-day suspension,

but we disagree with her reasoning. Specifically, the administrative judge found

We have applied the WPEA to this appeal because the personnel action at issue

occurred after the WPEA’s effective date. IAF, Tab 5 at 21; see Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 51.

that the timing of the meeting precluded it from being a contributing factor in the

suspension because the meeting occurred after the proposal was issued. ID at 17.

A disclosure that occurs after the personnel action at issue was taken cannot be

considered a contributing factor in that personnel action. Sherman v. Department

of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015). However, the meeting

occurred before the final decision was made, and thus, the personnel action was

merely contemplated and in preparation before the appellant’s second-line

supervisor became aware of the disclosure. Id., ¶¶ 3-4, 9-11 (remanding to

determine whether an appellant’s performance evaluation was completed before

or after the appellant’s rating officials learned of his disclosure). Thus, the

timing alone does not preclude this meeting from being a contributing factor in

the January 16, 2013 suspension decision. IAF, Tab 5 at 20-21. Nevertheless,

there is no evidence that the deciding official knew, or was influenced by anyone

who knew, about the appellant’s meeting with the IG. Indeed, the IG informed

the appellant that his contact with that office would remain confidential. IAF,

Tab 51 at 42. For that reason, we find that the appellant has not established that

the deciding official had actual or constructive knowledge of the meeting.

Moreover, the record does not support a finding that the appellant established

contributing factor by another prescribed method. See Dorney v. Department of

the Army, 117 M.S.P.R. 480, ¶ 15 (2012) (outlining that if an appellant does not

prove contributing factor by way of the knowledge/timing test, other evidence

should be considered, such as the strength or weakness of the agency’s reasons

for taking the action, whether the whistleblowing was directed at the proposing or

deciding officials, and whether these individuals had a desire or motive to

retaliate against the appellant).

¶17 Fourth, we modify the initial decision to address an argument that the

appellant raises on review, and which he appeared to raise below, but which the

administrative judge did not address. Specifically, the appellant argues that his

suspension was based on his refusal to obey his supervisor’s order to lower his

subordinates’ performance ratings. IAF, Tab 45 at 4; PFR File, Tab 1. He claims

that this order would have required him to violate a directive regarding the

agency’s Performance Plan and Appraisal System, as well as the applicable

collective bargaining agreement, and the agency was therefore prohibited from

disciplining him for this under 5 U.S.C. § 2302(b)(9)(D). IAF, Tab 45 at 4; PFR

File, Tab 1. However, at the time of the personnel action at issue, 5 U.S.C.

§ 2302(b)(9)(D) made it a prohibited personnel practice to take a personnel action

in retaliation for refusing to obey an order that would have required the employee

to violate a “law.” The U.S. Court of Appeals for the Federal Circuit interpreted

the term “law” in this subsection to mean “statute.” Rainey v. Merit Systems

Protection Board, 824 F.3d 1359, 1361-65 (Fed. Cir. 2016). It was not until the

instant appeal already was pending that subsection (b)(9)(D) was amended to

cover orders that would require an employee to violate a “law, rule, or

regulation.” Follow the Rules Act (FTRA), Pub. L. No. 115-40, § 2, 131 Stat.

861 (2017); Fisher, 2023 MSPB 11, ¶ 12. The Board has found that the

amendments to subsection (b)(9)(D) should not be applied to Board appeals that

already were pending prior to the enactment of the FTRA. Fisher, 2023 MSPB

11, ¶¶ 13-19. Because the Performance Plan and Appraisal System directive and

the collective bargaining agreement are not statutes, and the appellant has not

identified any statute that his supervisor’s order would have required him to

violate, we find that he has not established that he engaged in protected activity

under 5 U.S.C. § 2302(b)(9)(D). 5

Clear and Convincing Evidence

¶18 Having found that the appellant met his burden to prove by preponderant

evidence that his November 11, 2012 disclosure was a contributing factor in his

5-day suspension, we now turn to whether the agency proved by clear and

convincing evidence that it would have suspended the appellant absent his

We have reviewed the other relevant legislation enacted during the pendency of this

appeal and find that none further impact the outcome.

disclosure. In determining whether an agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of

protected activity, the Board will consider the totality of the circumstances,

including the following factors: the strength of the agency’s evidence in support

of its action; the existence and strength of any motive to retaliate on the part of

the agency officials who were involved in the decision; and any evidence that the

agency takes similar actions against employees who are not whistleblowers but

who are otherwise similarly situated. Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999).

¶19 In this case, the administrative judge considered the Carr factors and found

that the agency proved by clear and convincing evidence that it would have issued

the 5-day suspension notwithstanding the appellant’s November 19, 2018

disclosure to his supervisor. ID at 17-18. She found that the agency’s evidence

in support of the suspension was strong. Id. She reasoned that the appellant

falsely reported the ratings for two of his subordinates, and surreptitiously

attempted to change the rating for a third subordinate despite an instruction that

he not do so. Id. She further determined that the appellant’s supervisors did not

have a strong motive to retaliate. ID at 18. She found a lack of evidence that

there were any other supervisors like the appellant who engaged in the same type

of misconduct. Id.; see Siler v. Environmental Protection Agency, 908 F.3d 1291,

1299 (Fed. Cir. 2018) (holding that in the absence of relevant comparator

evidence, Carr factor 3 cannot favor the Government). The appellant does not

challenge these findings on review, and we find no reason to disturb them.

Other Arguments Raised on Petition for Review

¶20 The appellant argues that the administrative judge abused her discretion in

denying several witnesses who would have testified to his character and

credibility. PFR File, Tab 1 at 4. The administrative judge made only one

credibility finding regarding the appellant. ID at 17-18. The specific finding was

that the appellant did not credibly deny that he attempted to change the

performance rating of his third subordinate. Id. The appellant does not challenge

this finding or explain how the disallowed witnesses would have disproved it.

PFR File, Tab 1 at 4. Under the circumstances, we find that the administrative

judge did not abuse her broad discretion to rule on witnesses. IAF, Tab 48; see

Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22, ¶ 12

(2013) (observing that administrative judges have broad discretion to regulate the

proceedings before them, including the discretion to exclude witnesses); 5 C.F.R.

§ 1201.41(b)(8) (including among an administrative judge’s powers the authority

to rule on witnesses). Nor has the appellant shown how he was harmed by these

rulings. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)

(finding that an administrative judge’s procedural error is of no legal consequence

unless it is shown to have adversely affected a party’s substantive rights).

¶21 The appellant also argues that his second-level supervisor made several

false or inconsistent statements during the hearing about why and how some of

the appellant’s subordinates earned the ratings that the appellant’s first-level

supervisor directed him to assign. PFR File, Tab 1 at 6-8. For example, the

appellant argues that, contrary to his second-level supervisor’s testimony, “it is

not permissible to usurp the judgment of the immediate supervisor” in the rating

process. Id. at 7. The appellant asserts that the lower ratings selected by his

supervisors are suspect because his second-level supervisor “never reviewed the

work of a single employee.” Id. at 6. We find that these arguments do not

provide a sufficiently sound basis to overturn the administrative judge’s finding

that the appellant’s second-level supervisor credibly denied a retaliatory motive

during his testimony. ID at 18; see Haebe v. Department of Justice, 288 F.3d

1288, 1301 (Fed. Cir. 2002).

¶22 Accordingly, we affirm the initial decision denying corrective action, as

modified.

NOTICE OF APPEAL RIGHTS 6

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).

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:

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.

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. 7 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