Opinion

Joseph Wible v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

explaining that the protection for employment benefits under the VRRA covered only reservists

How later courts described this case

explaining that the protection for employment benefits under the VRRA covered only reservists

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH WIBLE, JR., DOCKET NUMBER

Appellant, AT-0831-18-0196-I-1

OFFICE OF PERSONNEL DATE: May 21, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph Wible, Jr. , Topeka, Kansas, pro se.

Karla W. Yeakle , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The Office of Personnel Management (OPM) has filed a petition for review

of the initial decision, which reversed its final decision and ordered it to credit

periods of military service towards the appellant’s civilian retirement, permit a

deposit for other military service, and change the appellant’s prior designation as

being in Civil Service Retirement System (CSRS) Offset to CSRS. For the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

reasons discussed below, we GRANT the agency’s petition for review and

REVERSE the initial decision.

BACKGROUND

The appellant transitioned between the civil service and military service on

multiple occasions throughout his career with the Government, which began in

1976 and concluded in May 2015, when he retired and began receiving his

Government annuity. 2 Initial Appeal File (IAF), Tab 8 at 11, 36-38. In a letter

dated July 17, 2017, OPM inquired with the Social Security Administration (SSA)

about whether the appellant was entitled to Old Age, Survivors and Disability

Insurance (OASDI) benefits, and SSA responded that he was fully insured and

would become eligible for benefits in December 2017—the first month after he

reached 62 years of age. Id. at 7.

In December 2017, OPM informed the appellant that it was recalculating

his previously established civil service annuity to eliminate service credit for his

post-1956 military service for which he had not made a pre-separation deposit

with his employing agency. Id. at 4-5. The letter informed the appellant that the

elimination of this credit would reduce his gross monthly annuity by $701 per

month. Id.

The appellant appealed OPM’s decision to the Board, arguing that he did

not receive accurate civil service retirement credit for some of the periods of his

military service. IAF, Tab 5 at 1-2. He identified three specific time periods

during which he served in the military, but which OPM later excluded in

calculating his retirement. IAF, Tab 16. The first period covered the appellant’s

military service from September 23, 1976, to December 1, 1978, lasting 2 years,

2 months, and 8 days (Period 1). Id. at 5-6. The second period covered the

The administrative judge accurately laid out a detailed timeline of the appellant’s

career, wherein she detailed every civil service position and period of military service

in which the appellant served. Initial Appeal File, Tab 19, Initial Decision at 2-4. The

parties do not dispute her findings as to the dates of service; therefore, we will not

reiterate that timeline here.

appellant’s military service from April 22, 1992, to May 2, 1993, lasting 1 year

and 10 days (Period 2). Id. at 6-7. The third period covered the appellant’s

military service from May 5, 2003, to September 22, 2003, lasting 4 months and

16 days (Period 3). Id. at 7. In his prehearing submission, he requested that the

Board grant him the right to make a late deposit for his post-1956 military

service, totaling approximately 3 years and 7 months. IAF, Tab 11 at 4.

The appellant also argued that, following his military service between 1992

and 1993, he was improperly placed in the CSRS-Offset system instead of CSRS.

Id. at 2. The appellant previously raised this issue, pursuant to the Federal

Erroneous Retirement Coverage Corrections Act (FERCCA), in Wible v.

Department of the Army, MSPB Docket No. CH-0839-13-0267-I-1. In an

Opinion and Order, the Board found that it had jurisdiction to determine whether

his employing agency properly determined that any error in placing him in

CSRS-Offset was not covered under FERCCA and remanded the appeal. Wible v.

Department of the Army, 120 M.S.P.R. 333, ¶¶ 7-8 (2013). On remand, the

administrative judge found that the alleged error was less than 3 years, and thus

did not fall under FERCCA. Wible v. Department of the Army, MSPB Docket No.

CH-0839-13-0267-B-1, Remand Initial Decision at 2 (Feb. 27, 2014)

(incorporating, by reference, Wible v. Department of the Army, MSPB Docket No.

CH-0839-13-0267-I-1, Initial Decision (May 2, 2013)). Neither party petitioned

for review of that remand initial decision, and it is now final. See 5 C.F.R.

§ 1201.113 (explaining that an initial decision generally becomes final 35 days

after issuance absent a petition for review). In Wible, 120 M.S.P.R. 333,

¶¶ 11-12, the Board also informed the appellant that he could separately file a

Board appeal regarding whether placement in CSRS-Offset violated the

Uniformed Services Employment and Reemployment Rights Act of 1994

(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). The appellant does

not appear to re-raise his FERCCA claim in the instant appeal, but does appear to

raise a claim under USERRA. IAF, Tab 15 at 3, Tab 17 at 7-8, Tab 18 at 4-5.

The administrative judge issued an initial decision reversing OPM’s

decision and finding that, because the appellant was employed in a civil service

position immediately before and immediately after his military service during

Period 2 and Period 3, he was entitled to civil service credit for his military

service without making a deposit. IAF, Tab 19, Initial Decision (ID) at 4-8.

She also found that the appellant was entitled to make a post -separation deposit

for his military service during Period 1, which was not preceded by civil service,

because he relied on misinformation provided by his employing agency when

initially electing not to make the deposit. ID at 8-11. Lastly, the administrative

judge found that OPM improperly determined that the appellant’s employing

agency correctly placed him in the CSRS-Offset system, rather than CSRS,

following his return from military service in May 1993, and she ordered OPM to

place the appellant in CSRS from May to September 1993. ID at 11.

The agency has filed a petition for review, arguing that the appellant could

not receive civil service credit for his military service for Period 2 and Period 3

because he had not made a deposit. Petition for Review (PFR) File, Tab 1

at 17-24. It also argues that the appellant was not entitled to make a

post-separation deposit for Period 1, contrary to the administrative judge’s

finding, because the appellant’s employing agency did not provide the appellant

with inaccurate information. Id. at 27-28. It also asserts that the appellant’s

employing agency correctly placed him in the CSRS-Offset system, and not the

CSRS system, following his military service in May 1993. Id. at 24-27. The

appellant has filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant was required to make a pre-separation deposit to receive civil

service credit for his military service during Period 2 and Period 3.

Section 8332 of title 5 governs creditable service under CSRS. In the

initial decision, the administrative judge relied on 5 U.S.C. § 8332(f) in finding

that the appellant was entitled to civil service credit for Period 2 and Period 3

without having to make a deposit. ID at 7-8. That section provides that:

Credit shall be allowed for leaves of absence without pay granted an

employee while performing military service or while receiving

[workers’ compensation] benefits . . . . An employee or former

employee who returns to duty after a period of separation is deemed,

for the purpose of this subsection, to have been in a leave of absence

without pay for that part of the period in which he was receiving

[workers’ compensation] benefits.

The administrative judge found that this provision entitles individuals to

civil service credit for military service when that service interrupts an otherwise

continuous period of civil service. Id. Because the appellant left a civil service

position for military service and returned to civilian service after his military

service was completed, the administrative judge found that he was entitled to

credit for Periods 2 and 3. Id. The parties do not contest this finding on review,

and we decline to disturb it.

“Notwithstanding” any other provision of section 8332, including section

8332(f), section 8332(j) requires OPM to recalculate an annuitant’s payment

when he becomes eligible for OASDI to exclude any post-1956 military service.

Hooten v. Office of Personnel Management, 114 M.S.P.R. 205, ¶ 6 (2010).

Thus, even if the appellant was entitled to civil service credit for his military

service under section 8332(f), that service credit became excluded from the

appellant’s annuity when he became eligible for OASDI benefits.

5 U.S.C. § 8332(j)(1); Hooten, 114 M.S.P.R. 205, ¶ 6.

Nevertheless, such excluded credit could be included in the appellant’s

annuity calculation if he had made a pre-separation deposit. 5 C.F.R.

§ 831.2104(a) (requiring employees who retire on or after October 1, 1983,

to make deposits before their separations from service upon which their claims to

their annuities are based). Under 5 U.S.C. § 8332(j)(2)(A), the exclusion of

military service from an annuity calculation does not apply to “any period of

military service of an employee . . . with respect to which the employee . . . has

made a deposit with interest, if any, under section 8334(j) of this title.” The

appellant does not dispute that he failed to make a deposit for Period 2 and Period

3, and, as such, we find that he is not entitled to service credit for those time

periods. 3 See Hooten, 114 M.S.P.R. 205, ¶ 6 (stating that, if an annuitant fails to

make a deposit to receive credit for active military service performed after 1956,

OPM must recalculate the annuity payments when he first becomes eligible for

Social Security benefits to exclude credit for the post-1956 service).

The administrative judge erred in finding that the deposit requirement violated

USERRA.

In determining that the appellant was not required to pay a deposit for

Periods 2 and 3, the administrative judge further reasoned that the requirement

violated USERRA. ID at 7. In making this finding, she raised the analogy of

full-time employees with compensable injuries, who, pursuant to 5 U.S.C.

§ 8332(f), receive credit for an entire day, although they only worked a portion of

the day. ID at 5-7 (citing Hatch v. Office of Personnel Management,

100 M.S.P.R. 204, ¶¶ 10-13, 22 (2005)). The administrative judge found that

requiring the appellant to make a deposit in order to receive civil service credit

violated USERRA because an employee who is on leave without pay (LWOP)

status while receiving Office of Workers’ Compensation Program benefits would

not be required to make a deposit, and thus would be treated more favorably than

an employee who is on LWOP status while serving in the military and who is

required to make a deposit in order to receive civil service credit. ID at 7 (citing

38 U.S.C. § 4301(a)(3) (stating that one of the purposes of USERRA is to

“prohibit discrimination against persons because of their service in the uniformed

services”)). As such, the administrative judge found that the appellant was not

Below, we address whether the appellant was properly placed in the CSRS-Offset,

effective May 3, 1993. IAF, Tab 11 at 9. That determination does not impact this

finding. With exceptions not relevant here, employees in CSRS and CSRS-Offset “are

treated the same.” 5 C.F.R. §§ 831.1001, .1005.

required to make a pre-separation deposit in order to receive civil service credit

for the time periods at issue in Period 2 and Period 3.

We disagree with this conclusion. There is nothing in USERRA that would

preempt the above-discussed statutory provisions. To the contrary, certain

sections of USERRA contemplate retirement benefits and the impact of military

service on those benefits when there has been an absence from employment. For

instance, 38 U.S.C. § 4318 addresses employee pension benefit plans.

That section of USERRA provides that “[a] person reemployed under this chapter

shall be entitled to accrued benefits . . . that are contingent on the making of, or

derived from, employee contributions or elective deferrals . . . only to the extent

the person makes payment to the plan with respect to such contributions or

deferrals.” 38 U.S.C. § 4318(b)(2). Further, as discussed above, the parties do

not dispute that the appellant was entitled to credit for his military service before

he became eligible for OASDI. Thus, he was treated the same as an injured

employee for purposes of 5 U.S.C. § 8332(f). The applicable provision requiring

exclusion of this service is section 8332(j)(1), which does not apply to injured

employees.

The administrative judge also referenced chapter 6, subchapter 1-5, of

OPM’s guide to Processing Personnel Actions, which explains how civilian

service that is potentially creditable for CSRS purposes is also creditable for

leave accrual. ID at 5 (citing OPM’s Guide to Processing Personnel Actions,

https://www.opm.gov/policy-data-oversight/data-analysis-documentation/

personnel-documentation/#url=Personnel-Actions ‌( last visited May 21, 2024).

That subchapter states, in relevant part, that “[e]mployees who are absent because

of uniformed service or compensable injury are entitled to be treated as though

they had never left . . . . A person who is reemployed under 5 [C.F.R. §] 353

receives credit for the entire period of his or her absence, that is, the entire period

from the time the employee left until he or she was restored or reemployed.”

Despite the Guide’s reference to CSRS creditable service in discussing

leave accrual, it does not provide insight into what is CSRS creditable service.

Instead, it addresses leave accrual rights upon an employee’s restoration to duty

following a compensable injury or absence for military service. Thus, we cannot

find the cited provisions relevant to this appeal.

Based on the foregoing, we reverse the administrative judge’s finding that

the appellant is entitled to service credit for Period 2 and Period 3. The appellant

is not entitled to that service credit because he failed to make pre-separation

deposits for those periods.

The appellant is not entitled to make a post-separation deposit for Period 1.

It appears that the appellant understood that he was required to make a

deposit to receive credit for Period 1, and, in his prehearing submission, he

requested the right to make a post-separation deposit for that time period. IAF,

Tab 11 at 4. Although an employee must currently occupy a position subject to

coverage under the CSRS to be eligible to make a deposit, see 5 C.F.R.

§ 831.2104(a), a separated employee may make a post-separation deposit if he

can show that an administrative error committed by his former employing agency

or OPM caused him to fail to make or to complete the deposit prior to his

separation, King v. Office of Personnel Management, 97 M.S.P.R. 307, ¶ 15

(2004) (stating that, in order to be entitled to a post -separation opportunity to

make a deposit for post-1956 military service, an appellant must prove that his

failure to make the deposit prior to his separation was “due to” or “caused by” the

administrative error), aff’d per curiam sub nom. Grant v. Office of Personnel

Management, 126 F. App’x 945 (Fed. Cir. 2005); 5 C.F.R. § 831.2104(a).

One of the situations identified by the Board in which it may find

administrative error and require OPM to waive the deadline to make a deposit is

if the employee relied on misinformation in electing not to make the deposit.

King, 97 M.S.P.R. 307, ¶ 48. The appellant, as the individual entitled to benefits,

bears the burden of proving by preponderant evidence 4 that he is entitled to a

post-separation opportunity to make the deposit to avoid the reduction in his

retirement annuity. Cheeseman v. Office of Personnel Management, 791 F.2d

138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)(ii). Here, the appellant

claimed that prior to retirement, he spoke with a human resources representative

with his employing agency and explained that the amount of creditable civilian

service in his record was incorrect because it did not include the times when he

was on active military duty. IAF, Tab 18 at 5-6. The representative told him that

the record of his creditable civilian service could not be fixed and that he needed

to pay a deposit for all periods of military service. Id. The appellant claims to

have been so distrustful of his employing agency’s information, given its alleged

prior errors in calculating the length of his military service, that he elected not to

make the deposits. Id.

The administrative judge found that the appellant’s employing agency was

incorrect in its position that he needed to make a deposit for his military service

for Period 2 and Period 3, and, as a result, found that the appellant established

that the human resources representative advised him incorrectly at the time of

retirement. ID at 10. She further found that the appellant established that he

relied on the inaccurate or incomplete information when deciding not to pay the

deposit for Period 1. Id. Accordingly, she found that the appellant was entitled

to a post-separation opportunity to make a military service deposit for Period 1.

ID at 10-11.

On review, OPM argues that the appellant is not entitled to make a

post-separation deposit because the human resources representative’s advice was

correct in advising the appellant that he was required to make a deposit for his

military service. PFR File, Tab 1 at 28. It also argues that the appellant admitted

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

that he understood that if he did not “buy back [his] military time back when [he]

turn[s] 62[, his] annuity will be reduced.” Id.; IAF, Tab 1 at 4.

We agree with the agency that the appellant is not entitled to an

opportunity to make a post-separation deposit for Period 1. Because we have

already found that 5 U.S.C. § 8332(j)(1)-(2) requires a deposit to avoid

recalculation to omit civilian credit for military service following receipt of

OASDI, we find that the human resources representative provided accurate

information to the appellant. To the extent that his employing agency had

previously miscalculated the length of his service, the appellant has not explained

how this caused him to fail to make any deposit at all. PFR File, Tab 2 at 4-9.

Thus, we find that the appellant has failed to show that he relied on

misinformation or an administrative error when he elected not to make a deposit.

Based on the foregoing, we reverse the administrative judge’s finding that the

appellant is entitled to an opportunity to make a post-separation deposit for

Period 1.

The appellant has no claim under the Vietnam Era Veterans’ Readjustment

Assistance Act.

While employed by the Defense Logistics Agency in a career conditional

position, the appellant was placed in LWOP status between February 16 and

April 21, 1992, for active military duty. IAF, Tab 8 at 34, 46, Tab 16 at 6. On

April 21, 1992, his status was changed to “TERMINATION-MIL,” IAF, Tab 8

at 46, and through May 2, 1993, he continued to serve on active military duty, id.

at 34. Following his military service, he returned to civilian service on May 3,

1993, with the Department of the Air Force in a GS-12 excepted service position.

Id. at 34, 45. When he returned, he was placed under the CSRS system. IAF,

Tab 11 at 9. In a January 2, 2013 letter from the Department of the Army, the

appellant was informed that the placement had been in error, and that, because he

“returned to a different position after a break-in-service of more than one year,”

he should have been placed in CSRS-Offset. Id. The letter informed the

appellant that the administrative correction had been processed. Id.

The appellant argued below that the agency did not err when it initially

placed him in the CSRS system, and that the error was the subsequent

administrative “correction” to CSRS-Offset. IAF, Tab 1 at 4, Tab 5 at 2.

The administrative judge agreed with the appellant, finding that the agency

should not have treated his military service as a break in service, and that he was

entitled to the same status he would have enjoyed if he had been continuously

employed in his civilian position during that time period, pursuant to provisions

of USERRA’s predecessor—the Vietnam Era Veterans’ Readjustment Assistance

Act, Pub. L. No. 93-508, 88 Stat. 1578 (1974), previously codified as amended

at 38 U.S.C. §§ 4301-4307 (1993), commonly referred to as the Veterans’

Reemployment Rights Act (VRRA). ID at 7-8, 11.

The agency argues on review that the appellant failed to exercise his

reemployment rights under the VRRA, and, therefore, the military service should

be considered a break in service for more than 1 year—as opposed to a furlough

—and the correction of the appellant’s record from CSRS to CSRS -Offset was

proper. PFR File, Tab 1 at 24-27.

We have reviewed the record, and we find that the appellant has failed to

state a VRRA claim upon which relief can be granted. The Board and its

reviewing court have generally treated the VRRA as only applicable to reservists.

See 38 U.S.C. § 4301(a)(2)(A), (b)(3) (1993) (stating that, under certain

prescribed circumstances, a person who returns to Federal employment following

military service “shall not be denied . . . retention in employment or any

promotion or other incident or advantage of employment because of any

obligation as a member of a Reserve component of the Armed Forces”);

Fernandez v. Department of the Army, 234 F.3d 553, 555-57 (Fed. Cir. 2000)

(explaining that the protection for employment benefits under the VRRA covered

only reservists); Murray v. National Aeronautics & Space Administration ,

112 M.S.P.R. 680, ¶¶ 3, 7 (2009), (reaffirming that the VRRA only applied to

members of a reserve component of the Armed Forces), aff’d per curiam,

387 F. App’x 955 (Fed. Cir. 2010). Because the appellant has neither alleged nor

proven that he was a reservist during 1992 or 1993, we find that he has no claim

under the VRRA. IAF, Tab 8 at 18, 34.

Based on the foregoing, we GRANT the agency’s petition for review, and

we REVERSE the initial decision. 5

NOTICE OF APPEAL RIGHTS 6

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

To the extent the appellant is raising a claim under FERCCA, that claim is precluded

by his prior Board appeal in Wible v. Department of the Army, MSPB Docket No.

CH-0839-13-0267-I-1. See Navarro v. Office of Personnel Management, 105 M.S.P.R.

278, ¶ 4 (stating that the doctrine of res judicata precludes a party from raising a claim

that was, or could have been, asserted in a prior proceeding), aff’d per curiam, 252 F.

App’x 316 (Fed. Cir. 2007).

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. 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 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.