William Bennett v. Department of Agriculture ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM C. BENNETT, JR., DOCKET NUMBER
Appellant, DE-1221-15-0461-W-1
v.
DEPARTMENT OF AGRICULTURE, DATE: November 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William C. Bennett, Jr., Union, South Carolina, pro se.
Christopher H. Bonk, Esquire and Kevin L. Owen, Esquire, Silver Spring,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 af fected 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 to clarify the initial decision’s analysis of the
clear and convincing evidence test, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed by the agency as a GS-9 Air Tanker Base
Manager in West Yellowstone, Montana. Initial Appeal File (IAF), Tab 9 at 6.
On January 28, 2015, the Fire Center Base Manager (Base Manager) 2 informed
his crew, which included the appellant, that the base was under scrutiny for
closure after the 2015 fire season due to the lack of infrastructure maintenance
over the course of many years. The Base Manager asked the crew to provide him
with “input and ideas” concerning possible ways to avoid a closure. IAF, Tab 1
at 5, Tab 39 at 51. In response, on February 3, 2015, the appellant provided a
4-page opinion that alleged, among other things, that an arsenic water filter
should have been installed at the base in 2012 when it was discovered that the
well water contained over the maximum containment level of arsenic established
by the Environmental Protection Agency, and the base should have maintained
2
The job titles of the appellant and his supervisor are similar. To differentiate, when
we refer to the appellant’ supervisor, we will use the title “Base Manager” and when we
refer to the appellant’s position, we will use the title “Air Tanker Base Manager.”
3
the tarmac and ramp used by airplanes that carried smoke jumpers 3 to and from
fires and failed to resubmit funding requests for maintenance issues, such as
repairing the ramp, “as required.” IAF, Tab 13 at 6-11. Nine days later, the Base
Manager informed the appellant that he would no longer be allowed to jump or to
participate in smoke jumper refresher training as a collateral duty because smoke
jumping was not in the position description of the Air Tanker Base Manager
position to which the appellant had been promoted.
¶3 Thereafter, the appellant filed an individual right of action (IRA) appeal to
the Board alleging that the Base Manager took away his smoke jumping duties in
retaliation for the protected disclosures that he made in his 4-page opinion. IAF,
Tab 1. After conducting a hearing, 4 the administrative judge issued an initial
decision, which found that the appellant nonfrivolously alleged that he made two
protected disclosures in the 4-page opinion that were contributing factors in a
personnel action (the agency’s rescission of his smoke jumper duties) and that he
had exhausted his administrative remedies before the Off ice of Special Counsel as
to those disclosures and that personnel action. IAF, Tab 50, Initial Decision (ID)
at 2 n.3. Thus, the administrative judge found that the appellant made a
nonfrivolous allegation that the Board has jurisdiction over his IRA appeal.
¶4 The administrative judge found further that the appellant established by
preponderant evidence that his disclosure regarding arsenic levels in the well
water reasonably asserted a violation of law, rule, or regulation, or a substantial
and specific danger to public health or safety and thus was a protected disclosure
under the Whistleblower Protection Enhancement Act of 2012 (WPEA). ID
at 4-5. He also found that the appellant established by preponderant evidence that
3
Smoke jumpers parachute into remote areas to combat wildfires. U.S. Department of
Agriculture, Forest Service, Smokejumpers, https://www.fs.usda.gov/science-
technology/fire/people/smokejumpers (last visited Nov. 21, 2022).
4
The hearing lasted 2 days, from May 24-25, 2016. We cite to the hearing transcript
for the first day as “HT1” and for the second day as “HT2.” A copy of the transcript for
both days is contained in the record.
4
his disclosure that the ramp maintenance funding request had not been
resubmitted as required constituted an allegation of a violation of law, rule, or
regulation, which also raised the specter of a substantial and specific danger to
public health or safety, and thus was a protected dis closure under the WPEA.
ID at 5. Additionally, the administrative judge found that, under the
knowledge/timing test, the appellant established by preponderant evidence that
his disclosures were a contributing factor to having the smoke jumping collateral
duty rescinded from his overall duties. ID at 5-6. According to the
administrative judge, the agency’s rescinding the appellant’s smoke jumping
duties was a personnel action because it constituted an action concerning
education or training that could be reasonably expected to lead to an appointment,
a promotion, or a performance evaluation, 5 and also was a significant change in
the appellant’s duties, responsibilities, and/or working conditions. ID at 5. The
administrative judge, however, determined that the agency showed by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s protected disclosures. ID at 7-15.
¶5 In his petition for review, the appellant contests the administrative judge’s
findings of fact and credibility determinations. For instance, he contends that the
administrative judge failed to consider that the Base Manager “lied under oath.”
Petition for Review (PFR) File, Tab 1 at 6-7. He further argues that the testimony
of the Base Manager and an Employee Relations Specialist concerning telephone
conversations that they said that they had about the appellant’s smoke jumping
duties should be discounted because of its hearsay nature. Id. at 9. The appellant
also contends that the administrative judge, in finding that the agency proved by
clear and convincing evidence that it would have rescinded the appellant’s smoke
5
Some evidence in the record suggests that smoke jumpers require a significant amount
of costly training each year to keep them current. HT2 at 7 (testimony of the interim
supervisor), 40 (testimony of the Base Manager). In his closing argument, the appe llant
acknowledged that training for most individuals might cost thousands of dollars, but he
stated that his training costs were minimal. IAF, Tab 49 at 12.
5
jumping duties absent his whistleblowing, erred by not considering his testimony
rebutting the agency’s evidence on that issue. Id. at 7-8. Finally, he argues that
the administrative judge was biased against him. Id. at 11.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 After establishing the Board’s jurisdiction in an IRA appeal, which the
appellant has done here beyond dispute, he must then establish a prima facie case
of whistleblower retaliation by proving by preponderant evidence that he made a
protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
under 5 U.S.C. § 2302(b)(9) that was a contributing factor in a personnel action
taken against him. 5 U.S.C. § 1221(e)(1); Soto v. Department of Veterans Affairs,
2022 MSPB 6, ¶ 6 (2022). If the appellant makes out a prima facie case, the
agency must prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or protected
activity. 5 U.S.C. § 1221(e)(1)-(2); Soto, 2022 MSPB 6, ¶ 6.
¶7 As noted above, the administrative judge found that the appellant made two
protected disclosures of either a violation of law, rule, or regulation, or of a
substantial and specific danger to public health or safety, and that both protected
disclosures were contributing factors to the rescission of h is smoke jumping
duties. ID at 4-6. Based on our review of the record and the fact that these
findings are not challenged on review, we discern no reason to disturb them. 6
6
On review, the appellant challenges the administrative judge’s discussion of one of the
points he raised in his 4-page opinion, which has been characterized as the “dorm
incident” and concerns a spring 2015 inspection that revealed the presence of asbestos.
PFR File, Tab 1 at 9-10; IAF, Tab 13 at 7. The administrative judge discussed this
issue in his clear and convincing evidence analysis and concluded that, because the
purported “disclosure” occurred after the agency took the personnel action and because
agency officials did not have knowledge of any asbestos issues prior to rescinding the
appellant’s smoke jumping collateral duties, the incident could not have triggered a
motive to retaliate, which is a factor to consider when determining whether the agency
met its clear and convincing burden. ID at 13-14. However, we believe that that
discussion is misplaced because knowledge of a disclosure or activity and the timing of
the personnel action in question are properly addressed in a contributing factor analysis
6
See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions).
¶8 Because the appellant established a prima facie case of whistleblower
reprisal, the relevant inquiry is whether the agency proved, by clear and
convincing evidence, that it would have taken the same action even in the absence
of the disclosures. Soto, 2022 MSPB 6, ¶ 18. The Board considers the following
factors (“Carr factors”) in determining whether an agency has meet its clear and
convincing burden: (1) the strength of the agency’s evidence in support of the
action; (2) the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Soto, 2022 MSPB 6, ¶ 11; see also Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The
appellant’s petition for review largely challenges the administrative judge’s
evidentiary analysis, factual findings, and credibility determinations related to
these factors. PFR File, Tab 1. However, as discussed below, we find that none
of his challenges warrants a different outcome than that arrived at by the
administrative judge.
as a part of an appellant’s prima facie case. Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 18 (2015). Moreover, the administrative judge did not find that the
appellant made a protected disclosure regarding the “dorm incident,” ID at 13, and,
regardless, even if he had, the Board has held that a disclosure or activity that occurs
after a personnel action is taken, such is the case here, cannot be a contributing factor to
that action. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27
(2011). Further, no one, including the appellant, testified at the hearing of being aware
of asbestos in the damaged dormitory until after the Base Manager rescinded the
appellant’s smoke jumping duties. E.g., HT2 at 56-57 (testimony of the Base Manager).
Thus, the purported disclosure, even if found to be protected, could not have been a
contributing factor to the agency’s rescission of the appellant’s smoke jumping duties.
The appellant’s arguments on review in this regard do not provide a basis to disturb the
initial decision.
7
The administrative judge properly analyzed Carr factor 1: the strength of the
agency’s evidence in support of its action.
¶9 In discussing the first Carr factor, the administrative judge provided a
nearly 5-page discussion of the testimony from three of the appellant’s
supervisors who testified collectively regarding the absence of smoke jumping
duties from the appellant’s position description, the concerns surrounding his
ongoing smoke jumping without it being a duty assigned to him, and the
decision-making process behind the decision to end that collateral duty. ID
at 7-11. The administrative judge credited this testimony and gave significant
weight to this factor. Id. Specifically, he credited the testimony of the
appellant’s former supervisor, who said that the appellant had been a smoke
jumper before he was promoted to an Air Tanker Base Manager position —a
position that did not include smoke jumping duties—and that he had been allowed
to smoke jump for a time after his promotion to that position because his duties at
the base could be covered by others. ID at 8-9. He also credited the testimony of
the appellant’s interim supervisor, who explained that he did not rescind the
appellant’s smoke jumping duties before the arrival of the new Base Manager
because he believed that a decision on the appellant continuing to serve a s a
smoke jumper should be made by the permanent Base Manager. ID at 9.
Additionally, the administrative judge credited the testimony that the Base
Manager’s decision to rescind the appellant’s smoke jumping duties was made
before the appellant submitted his 4-page opinion. ID at 11. The Base Manager
postponed acting on the decision for the 2014 fire season because resources
already had been spent getting the appellant trained and ready to smoke jump for
that fire season, and the Base Manager timed his action to avoid the expense of
recertifying the appellant for the upcoming 2015 fire season. ID at 9-11. Further,
the Base Manager, after discussing the matter with his supervisor, wanted to
confirm what he should do with an agency Employee Relations Specialist, based
in part on the Base Manager’s supervisor’s advice that he do so. ID at 10-11.
8
Based on the foregoing, the administrative judge found that the agency met its
burden by presenting overwhelming credible evidence in support of the personnel
action to rescind the appellant’s collateral smoke jumper training and duties. ID
at 7.
¶10 On review, the appellant challenges the administrative judge’s discussion of
portions of the testimony. Specifically, he argues that the administrative judge
failed to consider that the Base Manager contradicted himsel f when he said,
at one point, that a written policy required that smoke jumping duties be part of
the appellant’s position description, whereas he later said that there is no written
policy stating that, to be able to perform smoke jumper duties, it must b e included
in a position description. Hearing Transcript 2 (May 25, 2016) (HT2) at 96-97
(testimony of the Base Manager). This testimony relates to whether the Base
Manager properly denied smoke jumper duties to employees whose position
description did not include such duties. The Base Manager, in his testimony,
clarified that the Inter-Agency Smokejumper Operating Guide addresses the
annual requirements necessary for smoke jumpers, even though there is no
particular language in the Guide directly linking qualifications or certifications
for smoke jumpers to a position description. He explained that an agency policy
existed, which he could not cite specifically, which states “that a position
description needs to be 80 percent accurate to be valid.” He noted that, if the
appellant were allowed to smoke jump, he would not be allowed to do that duty
enough for it to be valid for his position description. HT2 at 96-99 (testimony of
the Base Manager). The Base Manager also explained that allowing certain
employees, such as the appellant, to engage in the risky activity of smoke
jumping could expose the Government, the agency, and the employees to liability,
given that the employees would be working duties not covered under their
position descriptions. Likewise, he worried that the appellant could have a
mid-air collision during a smoke jump, which could end in tragedy. HT2
at 99-100 (testimony of the Base Manager). We find that the Base Manager’s
9
various explanations are not inherently inconsistent, as suggested by the
appellant. In any event, we find that the appellant mistakenly asserts that the
administrative judge did not consider the Base Manager’s varying explanations on
this matter; in fact, the administrative judge explicitly noted the diff erences at the
hearing. HT2 at 98-99 (comment by the administrative judge).
¶11 Contrary to the appellant’s assertion, the record does not support a finding
that the Base Manager was not truthful in testifying about whether smoke
jumping duties were tied to an employee’s position description. Rather, the
record supports the administrative judge’s finding that the Base Manager testified
credibly that one of the fundamental reasons he did not allow the appellant to
continue his smoke jumping duties was the absence of such duties from his
position description. The Board defers to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The
appellant has not presented sufficiently sound reasons to overturn the
administrative judge’s credibility determinations.
¶12 The appellant also objects to the testimony of the Base Manager and an
Employee Relations Specialist, who both confirmed that they discussed over the
telephone the possibility of rescinding the appellant’s smoke jumping duties
before he made his disclosures, given the testimony’s supposed hearsay nature.
PFR File, Tab 1 at 10. We disagree with the appellant that this testimony
constituted hearsay evidence. Pursuant to the Federal Rule of Evidence, 801(c),
hearsay is a statement, other than one made by the declarant while testifying at a
trial or hearing, offered in evidence to prove the truth of the matter asserted. See
Taylor v. U.S. Postal Service, 75 M.S.P.R. 322, 325 (1997); Fed. R. Evid. 801(c).
Here, both witnesses, who testified under oath, had firsthand knowledge of these
telephone conversations because they participated in them and related what they
10
recalled about those conversations. Further, the record does not indicate that the
statements offered into evidence were made by anybody other than the declarant s.
As such, we consider these statements to be direct testimony and believe that the
administrative judge gave them the appropriate evidentiary weight. Accordingly,
the appellant’s argument regarding hearsay is without merit. 7
¶13 The appellant contends, moreover, that the administrative judge ignored or
did not consider his testimony rebutting the agency’s evidence regarding why the
agency rescinded his smoke jumping duties. However, the administrative judge’s
failure to mention all of the evidence of record does not mean that he did not
consider it in reaching his decision. Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Therefore, the appellant’s argument in this regard is also without merit.
Based on the foregoing, we discern no reason to disturb the administrative
judge’s analysis of the first Carr factor and agree that the agency presented
strong evidence in support of its decision.
The administrative judge properly analyzed Carr factor 2: the existence and
strength of any motive to retaliate on the part of the agency off icials who were
involved in the decision.
¶14 In discussing the second Carr factor, the administrative judge considered
testimony from the Base Manager, who testified that he was indifferent to the
appellant’s disclosures, that the disclosures were provided in response to his own
request, and that the appellant had some good ideas but none were particularly
noteworthy. ID at 11. The administrative judge also considered that the Base
Manager’s testimony and “perspective” were consistent with the agency’s
response to the health and safety issues raised by the appellant in his disclosures.
Id. After considering and crediting the relevant testimony, the admin istrative
7
In any event, hearsay is admissible in Board proceedings and its probative value
depends on the circumstances of each case. Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 83-87 (1981).
11
judge properly concluded, ID at 11-14, that the agency may have had some
motive to retaliate based on the appellant’s submission of his 4-page opinion
criticizing the agency’s handling of safety issues and its decision to defer certain
maintenance issues, cf. Chavez v. Department of Veterans Affairs, 120 M.S.P.R.
285, ¶ 33 (2013) (finding that, even if an appellant’s disclosures do not directly
implicate or harm her superiors, her criticism reflecting on them both in their
capacity as managers and employees is sufficient to establish a substantial
retaliatory motive). Under the circumstances, we agree with the administrative
judge that any motive to retaliate was not very significant.
¶15 Moreover, although the appellant appears to challenge the findings
regarding this factor by disputing the administrative judge’s discussion of a
“dorm incident,” PFR File, Tab 1 at 9; ID at 13-14, we find that discussion to be
more relevant to a contributing factor analysis as a part of the appellant’s prima
facie case, as discussed in footnote 6. Therefore, the appellant’s arguments on
review do not provide a basis to disturb the initial decision with regard to this
factor.
We clarify that the burden of proof for Carr factor 3, any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated, is on the agency and not on the appellant.
¶16 In the initial decision, the administrative judge concluded that that “the
appellant failed to provide credible evidence” that the agency took similar actions
against employees who were not whistleblowers but who were otherwise similarly
situated. ID at 14. The U.S. Court of Appeals for the Federal Circuit has
recently reiterated that “the agency need not produce evidence with regard to each
of the factors, nor must each factor weigh in favor of the agency for [it] to carry
its burden,” Rickel v. Department of the Navy, 31 F.4th 1358, 1366 (Fed. Cir.
2022), but regardless of whether evidence is produced, the burden remains with
12
the agency. 8 Accordingly, we clarify the initial decision that the burden was not
the appellant’s. Id.¶17 The administrative judge does appear to have considered some of the
agency’s evidence on this point when he discussed the Base Manager’s testimony
that, when smoke jumping was not in an employee’s position description, he was
consistent about denying the employee the opportunity to smoke jump and that he
otherwise allowed safety officers to smoke jump when it was included in the
position description, but not when such employees were on detail to a position
that did not include those duties. ID at 14. However, it does not appear that the
agency provided any more specifically relevant evidence regarding this factor,
such as testimony regarding whether there were any similarly situated employees
who were not whistleblowers but engaged in similar conduct. The Board has held
that, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. 9 Soto, 2022 MSPB 6, ¶ 18.
8
Historically, the Board has been bound by the precedent of the Federal Circuit on this
issue. However, as a result of changes initiated by the Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, extended for 3 years in
the All Circuit Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894, and
eventually made permanent in the All Circuit Review Act, Pub. L. No. 115-195,
132 Stat. 1510, appellants may file petitions for judicial review of Board decisions in
whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction.
See 5 U.S.C. § 7703(b)(1)(B). We are aware of no other circuit courts which have
considered this issue.
9
Although we find that the third Carr factor does not weigh in favor of the agency, we
nonetheless address the appellant’s argument on review that the administrative judge
failed to consider the evidence and testimony that other employees who previously
encumbered the Air Tanker Base Manager position were allowed to smoke jump. PFR
File, Tab 1 at 10. This argument provides no basis to reverse the administrative judge’s
finding that one of the fundamental reasons the agency denied the appella nt’s smoke
jumping duties was the absence of such duties from his position description.
As discussed above, the agency presented sufficient rationale to justify why it took this
action, including that it was limiting other employees to the duties outlined in their
position descriptions as well. In addition, there is no evidence showing that other
employees with collateral smoke jumper duties worked under the same position
description as the appellant did, especially in light of the fact that he testified that his
13
¶18 Nonetheless, the Board does not view the Carr factors as discrete elements,
each of which the agency must prove by clear and convincing evidence, but rather
weighs the factors to determine whether the evidence is clear and convincing as a
whole. See Soto, 2022 MSPB 6, ¶ 13. On the whole, we find that the strength of
the agency’s evidence in support of the action outweighs the very slight evidence
of motive to retaliate on the part of the agency officials involved in the action and
the dearth of evidence regarding how the agency treats similarly situated
employees who were not whistleblowers. As such, we ultimately agree with the
administrative judge’s conclusion that the agency proved by clear and convincing
evidence that it would have rescinded the appellant’s base jumping collateral
duties even in the absence of his disclosures.
The appellant failed to show that the administrative judge was biased.
¶19 Finally, the appellant asserts that the administrative judge was biased
against him because the initial decision disregarded much of his evidence and
arguments. We disagree. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s allegations on
review, which do not relate to any extrajudicial conduct by the administrative
judge, neither overcome the presumption of honesty and integrity that
accompanies an administrative judge nor establish that he showed a deep-seated
favoritism or antagonism that would make fair judgment impossible . Scoggins v.
Department of the Army, 123 M.S.P.R. 592, ¶ 19 (2016). In any event, based on
our review, we find that the administrative judge provided specific in stances in
his initial decision in which he clearly cited to and relied upon the appell ant’s
evidence and testimony.
position may have been reclassified in 2012. HT1 (May 24, 2016) at 52 (testimony of
the appellant).
14
¶20 Accordingly, we affirm the administrative judge’s decision to deny the
appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS 10
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 an d
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).
10
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.
15
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 partic ular
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. ____ , 137 S. Ct. 1975 (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
16
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 th eir 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
17
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 a ny court
of appeals of competent jurisdiction. 11 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
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
11
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction 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.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.