Deena Brown v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEENA C. BROWN, DOCKET NUMBER
Appellant, SF-0752-16-0386-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall, Charleston, South Carolina, for the appellant.
Douglas W. Frison, Esquire, and Jonathan A. Beyer, Esquire, APO,
APO/FPO Pacific, 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
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
address the appellant’s due process claim, we AFFIRM the initial decision, which
is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency removed the appellant from the position of School Principal at a
Department of Defense school in Korea based on two charges, conduct
unbecoming a school principal and lack of candor. Specificall y, regarding the
conduct unbecoming charge, the agency alleged as follows:
On December 30, 2015, while at the Millezoo Animal Supply Shop,
Chinhae, Korea, you violently swept merchandise off the sales
counter to the floor. Then, when the Korean shopkeeper tried to get
you to remain at the shop until the local police arrived, you swung
and hit him with a dog leash and pushed him. You again swept your
arm across the counter and more merchandise fell from the counter.
Your confrontation with the store owner continued outside the store
and you swung and kicked at him. This was visible to the public. As
a result of your disorderly behavior, the shopkeeper’s cell phone was
damaged and the shopkeeper’s dog was seriously injured. This
conduct is unsuitable for a school principal.
Initial Appeal File (IAF), Tab 14 at 81.
¶3 Regarding the charge of lack of candor, the agency brought two
specifications as follows:
3
Specification 1: Later on December 30, 2015 you reported the
incident as an “FYI” to the Korea District Superintendent Office
(KDSO), stating:
This afternoon (off-duty) I had a brief disagreement with a Korean
store owner. We both voluntarily went to the police station to
resolve the matter and although we’ve both apologized and realized
gross miss communication [sic] was the root cause a local police
report was started. We both left on amicable terms; I wanted to give
you a heads up. I will let you know if/when more information
becomes available.
You failed to disclose facts which under the circumstances should
have been disclosed to make your account of what happened accurate
and complete. You impermissibly left KDSO with the impression
that your interaction with the shopkeeper was a minor event.
Specification 2: On January 14, 2016, when the Korean National
Police (KNP) questioned you regarding the December 30, 2015
incident with the shopkeeper you stated that you accidentally hit the
items off the counter and that you did not do it intentionally. A
review of the closed circuit TV footage of the incident shows that
your claim that you accidentally hit the items of [sic] the counter is
implausible.
Id. at 81-82. In selecting the removal penalty, the agency relied on the
appellant’s prior discipline, a 5-day suspension for unprofessional conduct,
failure to follow instructions, and lack of candor. Id. at 82.
¶4 The appellant appealed the agency’s action to the Board, alleging that the
agency did not prove the charged misconduct. IAF, Tab 1 at 6 -7. 2 She also
2
An employee who believes that he or she has been subjected to a discriminatory
personnel action must elect between filing an appeal directly with the Board, or filing a
formal equal employment opportunity (EEO) complaint with the agency and appealing
to the Board upon exhaustion of that complaint process. 5 U.S.C. § 7702(a); 5 C.F.R.
§ 1201.154(a), (b); 29 C.F.R. § 1614.302(b); see Peltier v. Department of Justice,
79 M.S.P.R. 674, ¶ 7 (1998). The record reflects that, in October 2015, the appellant
filed a formal EEO complaint alleging race and color discrimination, and reprisal for
having filed earlier EEO complaints. IAF, Tab 14 at 17. Subsequently, on March 31,
2016, she attempted to amend the complaint to include an allegation that the agency
discriminated against her in taking the removal action. Id. at 17, 21-23. The agency
denied the appellant’s attempt to amend her complaint, treated her allegation that the
removal action was discriminatory as a new complaint, requiring that she begin the
complaint process by contacting a counselor. Id. at 18. The appellant filed this appeal
4
alleged that the agency violated her due process rights. Id. at 11-16.
Additionally, she alleged that the agency did not prove nexus between the
misconduct and the efficiency of the service and argued that the penalty was
unreasonable. 3 Id. at 7-11, 16-18.
¶5 The administrative judge found that the agency proved the charge of
conduct unbecoming a school principal. IAF, Tab 27, Initial Decision (ID) at 7-9.
Her finding relied on the closed-circuit television recording of the majority of the
appellant’s interactions with the store owner. 4 ID at 8-9. She also found that the
appellant reacted to what amounted to a minor disappointment, that the store
owner would not allow her to return a dog leash that she had purchased earlier, by
damaging store property, and, when the owner/clerk calmly tried to keep her
inside the store until police arrived, the appellant again overreacted by kicking
the owner. ID at 9.
¶6 The administrative judge further found that the agency proved only
specification 2 of the lack of candor charge. ID at 9-12. She found that the video
showed that the appellant twice intentionally hit items off the store counter. ID
at 12. Thus, she found that the appellant’s statement that she accidentally
knocked items off the counter showed a lack of candor. Id. The administrative
judge found that, because the agency proved specification 2 of the lack of candor
charge, it proved the charge. Id.¶7 The administrative judge also found that the agency afforded the appellant
her due process rights and that the appellant failed to prove that the agency
before she filed a formal EEO complaint alleging that her removal was discriminatory.
Thus, she elected to file the appeal of her removal directly with the Board.
3
The appellant also alleged discrimination and harassment by the agency. IAF, Tab 1
at 11-14. However, she withdrew these affirmative defenses in her prehearing
submissions. IAF, Tab 20 at 11.
4
The camera captured the entirety of the appellant ’s interaction with the store owner
inside the store. IAF, Tab 26. However, when the appellant exited the store and
continued her altercation with the store owner, the outside camera was sometimes
blocked by a flag that was flying. Id.5
committed harmful procedural error. ID at 12-17. Finally, the administrative
judge found that the agency proved nexus between the appellant ’s off-duty
misconduct and the efficiency of the service, and that the removal penalty was
within the bounds of reasonableness. ID at 17-25.
¶8 In her petition for review, the appellant alleges that the administrative judge
improperly denied witnesses that she requested, denied a motion to facilitate
depositions, and failed to caution agency counsel against contu macious and
unethical conduct. Petition for Review (PFR) File, Tab 3 at 23-28. She also
asserts that the administrative judge erred in finding that the agency proved its
charges, that the agency afforded the appellant due process, and that the agency
proved nexus and the reasonableness of the penalty. Id. at 10-23, 28-30. The
agency has responded in opposition to the petition, PFR File, Tab 5, and the
appellant has replied to the response, PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge did not abuse her discretion in conduct ing the
proceedings before her.
¶9 In a May 10, 2016 order, the administrative judge directed the parties to file
a list of witnesses on or before August 1, 2016. IAF, Tab 16 at 3. The appellant
submitted a witness list and a supplemental witness list on August 3, 2016,
blaming the 2-day untimeliness of her submission on computer issues experienced
by her representative. IAF, Tab 20 at 11-13, Tab 21 at 4, Tab 22 at 3. The
administrative judge found that the appellant failed to show good cause for her
delayed submission and did not consider the appellant’s 5 witness requests. IAF,
Tab 22 at 3.
5
The administrative judge stated that she was not considering “the agency’s witness
requests.” IAF, Tab 22 at 3. It is clear, however, that she meant that she was not
considering the appellant’s witness requests, as she considered all of the witness
requests submitted by the agency. Id.6
¶10 On review, the appellant asserts that the administrative judge erred in
denying her witness requests. PFR File, Tab 3 at 23-25. We disagree. An
administrative judge has broad discretion to control the proceedings and to rule
on witnesses. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 38 (2012). This
includes the power to deny witnesses requested after the deadline for filing
prehearing submissions. Stewart–Maxwell v. U.S. Postal Service,
56 M.S.P.R. 265, 270 (1993) (finding that the administrative judge did not abuse
her wide discretion to control the proceedings before her by denying a witness
requested by the appellant after the deadline for filing prehearing submissions);
see Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 18 (2016)
(finding that the administrative judge did not err by ruling that the appellant
could not present witnesses at the hearing when she did not submit a prehearing
submission), clarified by Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 23-24. Here, the administrative judge’s May 10, 2016 order
afforded the parties until August 1, 2016 to submit their witness lists. Thus, the
appellant had ample time to comply, and the administrative judge properly found
the submission untimely filed without good cause shown.
¶11 The appellant also asserts on review that the administrative judge
improperly denied her motion to facilitate depositions. PFR File, Tab 3 at 25-26;
IAF, Tab 10 at 4-5. In her motion, the appellant complained that the agency
representative was not cooperating in finding a mutually a greeable date to depose
several agency witnesses and that her representative had listed several possible
dates for the deposition. IAF, Tab 10 at 5. In her order denying the motion, the
administrative judge noted that the appellant’s counsel had noticed depositions on
dates that he knew agency counsel was unavailable. 6 IAF, Tab 12 at 2 n.1. She
6
According to the administrative judge, one of the alternative dates proposed by the
appellant’s representative was a day on which both the appellant’s representative and
the agency’s representative would be appearing for a hearing in another case. IAF,
Tab 12 at 2 n.1.
7
informed the parties that she would not intervene in discovery disputes until the
representatives had engaged in a meaningful “meet and confer” over the issues.
Id. The administrative judge’s order is consistent with the Board’s regulatory
guidance regarding discovery that the parties “are expected to start and complete
discovery with a minimum of Board intervention.” 5 C.F.R. § 1201.71.
Moreover, there is no indication that the appellant filed a motion to compel
discovery following the administrative judge’s order for the parties to “meet and
confer” and thus the appellant is precluded from raising discovery-related matters
on review. Gardner, 123 M.S.P.R. 647, ¶ 26.
¶12 The appellant contends that the administrative judge improperly failed to
caution agency counsel for his repeated disparaging comments about the
appellant’s representative. PFR File, Tab 3 at 26. The administrative judge
mentioned in discussing her denial of the appellant’s motion to facilitate
depositions that the parties’ representatives had litigated matters against each
other in the past, and their interactions during the course of this appeal were
tempered by these past experiences. IAF, Tab 12 at 2. She cautioned both
representatives that this was no excuse for failing to genuinely meet and confer
regarding issues, for not treating each other with professionalism and respect, and
for not presenting their perspectives in a respectful tone. Id. We find that the
appellant’s mere assertion that the agency counsel made disparaging remarks,
especially without identifying whether they post-dated the administrative judge’s
language encouraging cooperation between the representatives, does not rise to
the level of allegations of contumacious conduct requiring sanctioning of the
agency counsel by the administrative judge. See Bernstein v. Department of the
Army, 82 M.S.P.R. 375, ¶12 (1999); West v. U.S. Postal Service,
44 M.S.P.R. 551, 560-61 (1990); 5 C.F.R. § 1201.43(d) (providing that an
administrative judge may exclude or limit the participation of a representative or
other person in a case for contumacious conduct or conduct prejudicial to the
administration of justice).
8
The administrative judge properly found that the agency proved its charge of
Conduct Unbecoming a School Principal.
¶13 To prove a charge of conduct unbecoming, the agency is required to
demonstrate that the appellant engaged in the underlying conduct alleged in
support of the broad label. Canada v. Department of Homeland Security,
113 M.S.P.R. 509, ¶ 9 (2010). Conduct unbecoming includes conduct which was
improper, unsuitable or detracting from one’s character or reputation. See Social
Security Administration v. Long, 113 M.S.P.R. 190, ¶ 42 (2010), aff’d,
635 F.3d 526 (Fed. Cir. 2011). The appellant contends that the agency failed to
prove the conduct unbecoming charge, alleging that the agency provided no
evidence of the chain of custody of the videos showing the appellant’s actions in
the pet store, and she generally challenges its accuracy. PFR File, Tab 3 at 14 -15.
As explained below, we find that the appellant’s assertions are unavailing.
¶14 The appellant raised this issue below, and the administrative judge carefully
considered the matter. She explained that the videos were obtained by the Korean
police during its investigation of the appellant’s conduct at the pet store and were
provided to the agency by the police. ID at 8. She acknowledged that the agency
could not attest to the precise chain of custody of the videos. Id. She explained
further that the agency has produced two separate sets of videos in this appeal:
the first is two short videos that appear to be the store ’s recording as it played on
a screen (i.e., an individual appears to have recorded the video while the closed
circuit television (CCTV) video was playing on the screen at the store); and the
second is two longer sets of video that appear to be the CCTV video of the
appellant’s visit to the pet store in its entirety. Id.¶15 The administrative judge found that the short clips of the video recorded
from the CCTV while the appellant was present with the police at the store match
those portions of the longer video. ID at 9. The appellant’s general disagreement
with this finding is insufficient to show that what was presented on the video is
not reliable evidence of her actions in the pet store. Id. We therefore agree with
9
the administrative judge’s finding that there is no reason to doubt the reliability
of these recordings.
¶16 The appellant contends that the administrative judge improper ly admitted
the investigative record developed by the proposing official as proof of the
charged misconduct because that investigative record is wholly hearsay. PFR
File, Tab 3 at 10-11. Hearsay evidence is admissible in Board proceedings, and
the assessment of the probative value of hearsay evidence nece ssarily depends on
the circumstances of each case. Shannon v. Department of Veterans Affairs,
121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 83-87 (1981). The administrative judge properly admitted the
proposing official’s investigative notes as part of the agency’s prehearing
submissions, IAF, Tab 19 at 44, but there is no evidence that the administrative
judge gave it any weight.
¶17 Thus, we find that the agency demonstrated that the appellant engaged in
the underlying conduct alleged in support of the conduct unbecoming charge.
Canada, 113 M.S.P.R. 509, ¶ 9. The appellant’s conduct in the pet store was
improper and unsuitable, especially for a school principal. See Long,
113 M.S.P.R. 190, ¶ 42. The appellant’s assertions that the agency did not prove
the conduct unbecoming charge are unavailing.
The administrative judge properly found that the agency proved the charge of
lack of candor.
¶18 An agency alleging lack of candor must prove the following elements:
(1) that the employee gave incorrect or incomplete information; and (2) that she
did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17
(2016). As noted, the administrative judge found that the agency proved only one
of the two specifications of the lack of candor charge, i.e., that, in response to
questions from the KNP regarding the December 30, 2015 incident with the
shopkeeper, she stated that she accidentally hit the items off the counter and that
she did not do it intentionally. IAF, Tab 14 at 102. We agree with the
10
administrative judge that the video evidence of the appellant ’s conduct shows that
she intentionally hit items off the pet store counter twice. IAF, Tab 26 (Video
Recording). Thus, the administrative judge properly found that the appellant
gave the police incorrect information and did so knowingly. See Fargnoli,
123 M.S.P.R. 330, ¶ 17. Because the agency proved one specification under the
lack of candor charge, the agency proved the charge. See Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 17 (2012) (finding that when there is one charge
with multiple factual specifications set out in support of the charge, proof of one
or more, but not all, of the supporting specifications is sufficient to sustain the
charge). The appellant’s assertion that the agency failed to prove the lack of
candor charge is unavailing.
The appellant’s assertion that the agency denied her due process is unavailing.
¶19 The appellant asserts on review, as she did below, that the agency denied
her constitutional due process and violated 5 U.S.C. § 7513 by refusing to
schedule an oral response to the notice of proposed removal. PFR File, Tab 3
at 28. The notice of proposed removal, which was received by the appellant on
February 2, 2016, informed her that she had 10 calendar days to reply in writing
or “personally” to the deciding official. IAF, Tab 14 at 82-84. Subsequently, the
appellant requested a 30-day extension to reply to the proposed removal, but the
deciding official granted a 10-day extension for the appellant to make both her
written and oral replies. IAF, Tab 19 at 122. The appellant made a detailed
written response to the proposed removal, but did not make an oral response.
IAF, Tab 14 at 58-79.
¶20 In her initial decision, the administrative judge found that the agency
granted the appellant ample opportunity, 20 days, to make an oral reply, but she
elected not to do so. ID at 17. The administrative judge found that the appellant
did not identify any agency policy or procedure that require d that the appellant be
granted more than 20 days to present an oral reply. Id. Thus, the administrative
judge concluded that she did not discern a procedural error. Id.11
¶21 The administrative judge did not specifically address whether the deciding
official’s refusal to extend the time for the appellant to make an oral reply
violated the appellant’s constitutional or statutory due process rights. We find
that the deciding official’s refusal did not violate those rights. The Constitution
affords the appellant, as part of minimum due process, an opportunity to reply to
the proposed removal either in writing or in person, but does not guarantee her a
right to both an oral and written reply. Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985) (finding that due process requires that,
prior to deprivation of a property interest in employment, a tenured employee is
entitled to “[t]he opportunity to present reasons, either in person or in writing,
why proposed action should not be taken”) (emphasis supplied); Ray v.
Department of the Army, 97 M.S.P.R. 101, ¶ 22 (2004), aff’d, 176 F. App’x 110(Fed. Cir. 2006). Section 7513(b) provides that an employee is entitled to “a
reasonable time, but not less than 7 days,” to respond to a proposed discip linary
action “orally and in writing.” Here, the agency afforded the appellant 20 days to
make a reply and, as noted, the appellant made a written reply. The appellant has
not shown how 20 days was not a reasonable period of time to make her oral
reply. Thus, we find the appellant’s contention without merit.
The administrative judge properly found that the agency proved nexus between
the appellant’s misconduct and the efficiency of the service.
¶22 In addition to the requirement that the agency prove its c harges, the agency
also must prove that there is a nexus, i.e., a clear and direct relationship between
the articulated grounds for an adverse action and either the appellant ’s ability to
accomplish his duties satisfactorily or some other legitimate Government interest.
Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8 (2010). An agency may
show nexus between off-duty misconduct and the efficiency of the service by
three means: (1) a rebuttable presumption in certain egregious circumstances;
(2) preponderant evidence that the misconduct adversely affects the appellant ’s or
co-workers’ job performance or the agency’s trust and confidence in the
12
appellant’s job performance; or (3) preponderant evidence that the misconduct
interfered with or adversely affected the agency’s mission. Id., ¶ 9.
¶23 We agree with the administrative judge that the agency established that the
appellant’s conduct in the pet store on December 30, 2015, and her subsequent
lack of candor with the KNP adversely affected the agency’s trust and confidence
in the appellant’s job performance. ID at 18. As the administrative judge found,
the agency established through the credible testimony of those in the appellant’s
supervisory chain that the appellant’s misconduct had caused them to lose
confidence in her ability to perform the specific duties of her position as school
principal, which required her to serve as the face of the school with the military
community and the local Korean community. The appellant’s altercation with the
pet store owner required the involvement of on-base resources and local police
involvement, and became known by locals in the community. ID at 17-21. Thus,
the agency established that the appellant’s misconduct adversely affected the
agency’s trust and confidence in her ability to perform her job. See Ellis,
114 M.S.P.R. 407, ¶ 9.
The administrative judge properly found that the agency established that the
removal penalty was within the bounds of reasonableness.
¶24 When all of the agency’s charges are sustained, but some of the underlying
specifications are not sustained, the agency’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within t he
parameters of reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646,
650 (1996). In determining whether the selected penalty is reasonable, the Board
defers to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 25 (2014). The Board recognizes that its function
is not to displace management’s responsibility or to decide what penalty it would
impose but to assure that management’s judgment has been properly exercised
and that the agency’s selected penalty does not exceed the maximum limits of
13
reasonableness. Id. Thus, 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. Id.¶25 Among the factors that an agency may weigh is an appellant ’s past
disciplinary record. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
(1981). The appellant argues that the agency improperly considered her prior
suspension for unprofessional conduct because the suspension remains an issue in
EEO litigation. PFR File, Tab 3 at 31. The Board’s review of a prior disciplinary
action in determining whether it may be considered in a penalty Douglas analysis
is limited to determining whether that action is clearly erroneous, if the employee
was informed of the action in writing, the action is a matter of record, and the
employee was permitted to dispute the charges before a higher level of authority
than the one that imposed the discipline. Bolling v. Department of the Air Force,
9 M.S.P.R. 335, 339-40 (1981). Here, the agency has shown that it informed the
appellant in writing of the prior suspension, it was a matter of record, and the
appellant was permitted to dispute the charges in it before a higher authority.
IAF, Tab 14 at 122. That the suspension is an issue in a pending EEO complaint
does not establish that the prior suspension was clearly erroneous. Thus, the
agency properly relied on the appellant’s prior suspension in determining a
reasonable penalty.
¶26 The appellant contends that the deciding official did not sufficiently
consider the appellant’s medical condition. PFR File, Tab 3 at 29. Contrary to
the appellant’s assertion, the deciding official considered the information that the
appellant provided regarding the medication that she was taking in determining
the appropriate penalty. IAF, Tab 14 at 56. The deciding official considered the
information mitigating, but did not find that it warranted mitigating the penalty ,
in part because the information about the appellant’s medical conditions
conflicted in some respects with her subsequent statement to police that she
accidentally knocked items off the pet store counter. Id.14
¶27 The deciding official considered that, moreover, the appellant’s serious
misconduct resulted in a negative impression of the agency in the community,
with base command, and with parents who have students in the school. Id. at 54.
She also considered that the appellant’s conduct undermined the relationships that
the military and agency civilians had built over time, and damaged the good will
that the agency had developed with Korean neighbors and allies. Id. Further, she
considered that the appellant was aware of the importance of fostering positive
community relations and of conducting herself in a professional manner as
partnership with the community was an element of her performance appraisal. Id.The deciding official appended a Douglas factors analysis to the removal
decision, which reflects that she carefully considered the Douglas factors and
how each one applied to the appellant’s situation. Id. at 54-57. We find that the
deciding official weighed the relevant factors in arriving at the pen alty of
removal. The appellant’s assertion that the removal penalty exceeds the bounds
of reasonableness is unavailing.
¶28 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, consti tutes 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
7
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
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. Failu re to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
16
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
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
17
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. 8 The court of appeals must receive your petition for
8
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.
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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
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.