Randal Ditch v. Federal Deposit Insurance Corporation ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDAL J. DITCH, DOCKET NUMBER
Appellant, DE-0752-15-0022-I-1
v.
FEDERAL DEPOSIT INSURANCE DATE: February 28, 2023
CORPORATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert J. Truhlar, Esquire, Centennial, Colorado, for the appellant.
Johnathan P. Lloyd, Esquire, Dallas, Texas, 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
affirmed the agency’s demotion and reassignment action. Generally, we grant
petitions such as this one only in the following circumstances: the i nitial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to find that the ex parte communication considered by the
deciding official was cumulative of the information provided to the appellant and
therefore did not violate his due process rights, we AFFIRM the initial decision.
BACKGROUND
¶2 On April 11, 2014, the agency proposed to remove the appellant from his
CG-0570-13 Supervisory Examiner position, based on the charge of conduct
unbecoming a supervisor (21 specifications) and lack of candor (3 specifications).
Initial Appeal File (IAF), Tab 10 at 24-31. After reviewing the record, including
the appellant’s written and oral replies, the deciding official only sustained 10 of
the specifications under the charge of conduct unbecoming a supervisor, finding
that: (1) the appellant had sex with a subordinate female employee, off d uty, on
two occasions (Specifications 1 and 2); (2) on October 31, 2013, the appellant,
the subordinate female employee, and another employee whom the appellant
supervised went to a bar and drank during duty hours (Specification 9); (3) while
at the bar, the appellant insisted that the subordinate female employee drink a
shot of whiskey, saying, “drink it, come on, don’t be a pussy” (Specification 10);
(4) the appellant and the female subordinate employee kissed while at the bar
(Specification 11); (5) the appellant certified the subordinate female employee’s
3
timesheet for October 31, 2013, as working her regular 8-hour shift, instead of
accounting for the time she spent with him at the bar (Specification 13);
(6) despite the subordinate employee having advised the appellant that she was
interested in only a professional relationship, on November 22 and 23, 2013,
while they both were on duty, the appellant expressed his continued romantic
feelings to her, and, the next day, sent her a text message saying that he still had
feelings for her and stating that he was going to find a way to reassign her
(Specifications 14 and 15); (7) on November 27, 2013, the appellant instructed
the subordinate employee to meet with him during duty hours, at which time he
asked her if they had a chance for a personal relationship and if she had feelings
for him (Specification 17); and (8) on December 2, 2013, the appellant, during
duty hours, told another subordinate employee of his romantic feelings for the
female subordinate employee and that he had slept with her (Specification 18).
Id. at 26-28; IAF, Tab 5 at 37. The deciding official did not sustain the charge of
lack of candor. IAF, Tab 5 at 38. Based on the sustained misconduct, the
deciding official mitigated the penalty to a demotion to a CG -0570-12
nonsupervisory Risk Examiner position and a reassignment from the Denver,
Colorado Field Office to the Tulsa, Oklahoma Field Office. Id. at 39.
¶3 The appellant filed a Board appeal challenging the agency action, and, after
holding a hearing, the administrative judge issued an initial decision affirming the
appellant’s demotion and reassignment. IAF, Tab 73, Initial Decision (ID). First,
the administrative judge found that the agency proved the misconduct set forth in
the 10 specifications sustained by the deciding official. ID at 4-18. Then, he
found that the agency established a nexus between the misconduct and the
efficiency of the service because the charged misconduct occurred subs tantially
while the appellant was on duty. 2 ID at 18-19. The administrative judge further
2
To the extent that the specifications involved off-duty misconduct, the administrative
judge found that the agency established nexus because the deciding official credibly
4
found that the appellant failed to prove that his sex was a motivating factor in his
demotion and reassignment. ID at 19-27.
¶4 With respect to the appellant’s claims that the agency violated his due
process rights, the administrative judge found that there was no credible evidence
that certain ex parte communications, i.e., three timelines created by agency
employees, records of electronic toll collections on a Denver area highway, and
information on an employee’s airline travel, were provided to the deciding
official. ID at 30-33. As for the ex parte communication that the deciding
official did consider—a memorandum detailing the subordinate female
employee’s inconsistent statements during the investigation—the administrative
judge found that the information was favorable to the appellant because it led the
deciding official not to sustain some of the specifications and, thus, such
consideration was not a due process violation. ID at 33-34. Furthermore, she
noted that the memorandum was “largely duplicative” of the information already
provided to the appellant. ID at 34. The administrative judge also found that the
deciding official’s consideration of the memorandum did not constitute harmful
error. ID at 35-36. Finally, the administrative judge found that the agency
established that the unified penalty of demotion and reassignment was within the
bounds of reasonableness and that the appellant failed to establish his claim of
disparate penalty. ID at 36-42.
¶5 In his petition for review, the appellant asserts, among other things, that the
agency failed to show that the unified penalty was reasonable and that the
deciding official violated his due process rights by improperly considering new
and material ex parte communications. Petition for Review (PFR) File, Tab 1.
The agency has responded to the petition for review, and the appellant has replied
to the response. PFR File, Tabs 3-4.
testified that the appellant’s conduct undermined her confidence in the appellant. ID
at 19.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The deciding official did not violate the appellant’s due process rights by
considering the memorandum about inconsistencies in the subordinate’s
statements because it was cumulative of the information given to the appellant.
¶6 The administrative judge found that the deciding official’s consideration of
a memorandum outlining the subordinate female employee’s inconsistent
statements during the administrative investigation was not improper because
“there is no [due process] violation when the ex parte information is favorable to
the appellant.” ID at 29-30, 33-34. In doing so, the administrative judge relied
on a nonprecedential Board decision 3 interpreting the language in Ward v. U.S.
Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011), in which the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) held, in part, that an employee
must receive “notice of any aggravating factors supporting an enhanced penalty.”
ID at 29-30. Specifically, the administrative judge const rued this language to
mean that due process requires only that an agency give an employee notice of
aggravating factors, not mitigating factors that are beneficial to him. Id. On
review, the appellant contends that knowledge of the memorandum would have
been important to his ability to respond to the specifications of misconduct based
on these statements and would have allowed him to argue the weight to be given
to this important mitigating factor. PFR File, Tab 1 at 21-23.
¶7 We find that the administrative judge took an overly restrictive view of an
agency’s due process requirements. The U.S. Supreme Court in Cleveland Board
of Education v. Loudermill, 470 U.S. 532, 546 (1985), described “[t]he essential
requirements of due process” as “notice and an opportunity to respond,”
explaining that the employee “is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
3
Nonprecedential decisions do not constitute binding authority on the Board. 5 C.F.R.
§ 1201.117(c)(2); see Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 12 n.5 (noting
that the Board was not citing nonprecedential decisions as precedent). Thus, the
administrative judge should not have relied on the nonprecedential decision.
6
present his side of the story.” Building on the holdings in Loudermill, the Federal
Circuit’s decisions in Ward, 634 F.3d at 1279-80, and Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), found that a
deciding official violates an employee’s due process rights when she relies upon
new and material ex parte information as a basis for her decisions on either the
merits of a proposed charge or the penalty to be imposed . See Johnson v.
Department of the Air Force, 50 F.4th 110, 115-16 (Fed. Cir. 2022); Norris v.
Securities and Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012); see
also Gray v. Department of Defense, 116 M.S.P.R. 461, ¶ 6 (2011).
¶8 Ward, Stone, and their progeny recognize, however, that not all ex parte
communications rise to the level of due process violations; rather, only ex parte
communications that introduce new and material information to the deciding
official are constitutionally infirm. Gray, 116 M.S.P.R. 461, ¶ 6. In Stone, the
Federal Circuit identified the following factors to be used to determine if ex parte
information is new and material: (1) whether the ex parte information introduced
cumulative, as opposed to new, information; (2) whether the employee knew of
the information and had an opportunity to respond to it; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. Stone, 179 F.3d at 1377. Ultimately, we
must determine whether the ex parte communication is “so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Id. A deciding official
does not commit a due process violation when she considers ex parte information
that merely “confirms or clarifies information already contained in the record. ”
Blank v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001). Thus,
the essential question is whether an ex parte communication is new and
material—the favorability of the information is not relevant.
¶9 We find that the ex parte communication at issue here, i.e., the
memorandum summarizing inconsistent statements by the female subordinate, is
7
not new because it is cumulative of the information contained in the record
provided to the appellant. The memorandum, which was drafted by the agency’s
Assistant Regional Director and Senior Human Resources Specialist, was based
on the evidence gathered during the agency’s investigation, including the
transcripts of the subordinate’s two interviews. IAF, Tab 44 at 71-80; Hearing
Transcript (HT), April 7, 2015, at 198-99 (testimony of the Assistant Regional
Director); HT, April 8, 2015, at 172, 183 (testimony of the Senior Human
Resources Specialist); HT, April 9, 2015, at 11-12 (testimony of the deciding
official). The documents the agency used to draft the memorandum, including the
transcripts of the subordinate’s interviews, were provided to the appellant. 4 IAF,
Tab 6 at 15-43, Tab 13 at 50-106, Tab 14 at 4-65. In fact, the appellant focused
his replies extensively on the subordinate’s inconsistent statements. IAF, Tab 5
at 72-85, Tab 6 at 59, 64-66, Tab 7 at 18-20. He even created a document with a
table setting forth the inconsistent statements, the evidence that contradicted
them, and citations for the contradictory evidence. IAF, Tab 5 at 80-85.
¶10 Thus, the appellant had the information relied on by the agency, which
allowed him to draw the same conclusions as those contained in the agency
memorandum. The deciding official considered this argument, as demonstrated
by the fact that she did not sustain several of the specifications against the
appellant, citing “conflicting testimony.” Id. at 37; HT, April 9, 2015, at 14
(testimony of the deciding official). The Board has found that a deciding official
does not violate an employee’s due process rights when she considers issues
4
The transcript of the female subordinate’s first interview was included in the materials
relied on, which were given to the appellant and to which he responded in his written
reply. IAF, Tab 6 at 77-88, Tab 7 at 4-20, Tab 13 at 50-106, Tab 14 at 4-65. Because
of the appellant’s written and oral replies, which noted some inconsistencies in the
female subordinate’s statements, the deciding official requested that the female
subordinate be interviewed again. HT, April 9, 2015, at 9 (testimony of the deciding
official). The appellant was provided with a transcript of the second interview and
afforded an opportunity to respond, which the appellant did . IAF, Tab 5 at 72-85, Tab 6
at 15-43.
8
raised by the employee in his response to the proposed adverse action. See
Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 13 (2014); see also Blank,
247 F.3d at 1229. Thus, the appellant, having thoroughly raised the issue of the
inconsistent statements in his replies, cannot now claim that he was unaware of
the issue and that the administrative judge’s consideration of it constitutes a due
process violation. 5
¶11 In conclusion, the memorandum, while an ex parte communication, was not
new, because it was cumulative of the information provided to the appellant.
Therefore, consideration of this ex parte communication did not violate the
appellant’s due process rights. 6
5
To the extent that the appellant argues that the memorandum includes references to the
investigators’ impression of the subordinate’s demeanor during the interview, which
constitutes new and material information, the argument is misplaced. PFR File, Tab 1
at 22. First, there is only one reference to the subordinate’s demeanor during the
interviews in the memorandum, i.e., that her demeanor during the interviews “did not
suggest[] that she [was] in any way intimidated by management.” IAF, Tab 44 at 78.
Nevertheless, upon review of the memorandum, it appears that the subordinate’s lack of
intimidation was discerned from several sources other than just her demeanor, including
text messages that the appellant had in his possession. Id. at 71-80. Accordingly, this
information is also cumulative, and consideration of it is not a violation of the
appellant’s due process rights.
6
The appellant also argued on review that the administrative judge did not address his
allegation that the deciding official violated his due process rights by considering ex
parte information concerning the agency’s potential financial liability as a result of the
female subordinate filing a sexual harassment equal employment opportunity complaint
against the appellant. PFR File, Tab 1 at 23-25. The administrative judge, however,
did address this argument, finding that the deciding official credibly testified that the
language was expunged from the notice and that she did not consider it with respec t to
the appellant’s discipline. ID at 25 n.23. The appellant has not presented sufficiently
sound reasons to disturb the administrative judge’s findings, and, thus, we defer to the
administrative judge’s credibility determination. See Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly or
implicitly, on observing the demeanor of witnesses testifying at a hearing, and the
Board may overturn such determinations only when it has “sufficiently sound” reasons
for doing so).
9
The unified penalty of demotion and reassignment is reasonable.
¶12 The appellant has not challenged, and we discern no basis to disturb , the
administrative judge’s findings with respect to the merits of the charge, 7 nexus,
his affirmative defense of sex discrimination, 8 or his claims of harmful procedural
error. 9 ID at 4-27, 34-36. The appellant instead challenges the administrative
judge’s findings regarding the reasonableness of the penalty, arguing that the
agency did not consider all of the relevant Douglas factors, emphasizing the
consistency of the penalty. PFR File, Tab 1 at 9-20.
¶13 When, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Archerda v. Department of Defense,
121 M.S.P.R. 314, ¶ 25 (2014); Douglas v. Veterans Administration, 5 M.S.P.R.
7The appellant did argue that the administrative jud ge failed to give the words of
certain stipulations the appropriate meaning and weight, and, if he had done so, he
would not have sustained Specification 9. PFR File, Tab 1 at 7-9. However, even if we
were to assume that the administrative committed this error, it did not have any effect
on the appellant’s substantive rights because it is well established that, when there is
one charge with multiple factual specifications, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge. Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 17 (2012); see Burroughs v. Department of the Army,
918 F.2d 170, 172 (Fed. Cir. 1990). Accordingly, we need not decide whether the
administrative judge failed to give proper weight to the parties’ stipulations.
8
After the initial decision was issued, the Board clarified its analytical framework for
Title VII status-based discrimination claims in Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-25. However, because the administrative judge’s
analysis of the appellant’s affirmative defense of sex discrimination is thorough,
well-reasoned, and consistent with our findings in Pridgen, we discern no reason to
disturb it. ID at 19-27.
9
The administrative judge found that the agency did not commit harmful error because
its consideration of the memorandum was favorable to the appellant as it resulted in the
deciding official rejecting several specifications, and the information contained in the
memorandum was largely duplicative of the information provided to the appellant. ID
at 35-36. The parties do not dispute the administrative judge’s findings on review, and
because they are well-reasoned and supported by the record, we discern no basis to
disturb them. Id.10
280, 306 (1981). The Board will modify a penalty only when it finds that the
agency failed to weigh the relevant factors or that the imposed penalty clearly
exceeded the bounds of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 25.
Additionally, when, as here, an agency imposes a penalty of an adverse action
combined with a reassignment, the Board must consider the reasonableness of the
unified penalty, despite the fact that the Board generally lacks jurisdiction over
reassignment actions. See Brewer v. American Battle Monuments Commission,
779 F.2d 663, 665 (Fed. Cir. 1985); Tamburello v. U.S. Postal Service,
45 M.S.P.R. 455, 471 (1990).
¶14 We agree with the administrative judge that the deciding official carefully
considered the pertinent Douglas factors and exercised management discretion
within tolerable limits of reasonableness in imposing the unified penalty of
demotion and reassignment. ID at 36-42. As the deciding official’s statements
demonstrate, she considered the appellant’s misconduct very serious as it caused
“significant disruption to the efficiency of the Denver” office , particularly
because as a supervisor the appellant was entrusted with significant
responsibilities, including acting as a role model, demonstrating good judgment,
developing members of his team, fostering a positive workplace culture, and
promoting teamwork. IAF, Tab 5 at 38-45. It is well settled that supervisors may
be held to a higher standard of conduct because they occupy positions of trust and
responsibility. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010);
Martin v. Department of Transportation, 103 M.S.P.R. 153, ¶ 13 (2006), aff’d,
224 F. App’x 974 (Fed. Cir. 2007). The deciding official also considered the
factors that weighed in favor of mitigation, to include that the appellant had no
past disciplinary record, he had 25 years of service, he got along with fellow
workers, he was dependable, and, due to his 25 years of satisfactory performance
as a Bank Examiner, she believed that he had the ability to perform in that
position. IAF, Tab 5 at 41-42, 44.
11
¶15 With respect to his claims of disparate penalty, in his oral reply and in
hearing testimony, the appellant identified a number of agency supervisors who
had dated, and, in some instances, had eventually married subordinate employees.
IAF, Tab 6 at 60; HT, May 20, 2015, at 48-53 (testimony of the appellant).
Although the deciding official did not address the comparators identified by the
appellant, 10 the administrative judge did, finding that these individuals were not
proper comparators, in part because these incidents took place approximately
15 to 20 years ago under a different Regional Director. ID at 40-42. Because the
administrative judge’s findings are supported by the record, we discern no basis
to disturb them. 11
¶16 Thus, because we agree with the administrative judge that the agency
considered all relevant factors and that the unified penalty of demotion and
reassignment was well within the tolerable bounds of reasonableness, the
agency’s action was properly affirmed. ID at 42.
10
To the extent the deciding official may have committed procedural error in not
considering the comparators identified by the appellant, the appellant failed to show
that such error was harmful, because, for the reasons articulated by the administrative
judge, the appellant failed to show that consideration of such comparators likely would
have caused the agency to reach a conclusion different from the one that it rea ched in
the absence of the error. See 5 C.F.R. § 1201.4(r) (stating that to prove harmful
procedural error, an appellant must show that the agency committed an error in
applying its procedures that is likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error); see
also Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 19 (2016).
11
In adjudicating the appellant’s disparate penalty claim, the administrative judge cited
Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). ID at 40-42.
In Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 10-17, issued after the initial
decision, we overruled Lewis to find that, when analyzing disparate penalty claims,
broad similarity between employees is insufficient to establish that they are appropriate
comparators, and to reaffirm that the relevant inquiry is whether the agency knowingly
and unjustifiably treated employees who engaged in the same or similar offenses
differently. Nevertheless, the administrative judge’s reference to the standard set forth
in Lewis was not prejudicial in this case because he properly found that the appellant
failed to satisfy even that less onerous standard. ID at 40-42.
12
NOTICE OF APPEAL RIGHTS 12
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).
12
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.
13
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. ____ , 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
14
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
15
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. 13 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 websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13
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 petition s 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.
16
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.