Arthur Fisher v. Department of the Interior , 2023 MSPB 11 ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 11Docket No. SF-0351-16-0192-I-1
Arthur E. Fisher,
Appellant,
v.
Department of the Interior,
Agency.
March 16, 2023
Arthur E. Fisher, Hailey, Idaho, pro se.
Anna Roe, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his separation pursuant to a reduction-in-force (RIF) action. After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under 5 C.F.R. § 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Opinion and Order to clarify the administrative judge’s
analysis of the appellant’s whistleblower reprisal affirmative defense, we
AFFIRM the initial decision.
2
BACKGROUND
¶2 The appellant was a Realty Officer at the Siletz Agency within the Bureau
of Indian Affairs in Siletz, Oregon. Initial Appeal File (IAF), Tab 4 at 13. On
September 29, 2015, the agency notified him that his position would be abolished
and he would be separated by RIF. Id. at 16-18. It informed him that the RIF
was due to a decision by the agency’s Regional Director of the Northwest Region
(Regional Director) to close the Siletz Agency through a reorganization. Id.
at 16. The appellant’s separation was effective December 4, 2015. Id. at 13.
¶3 The appellant filed an appeal of his separation with the Board and raised
affirmative defenses of age discrimination and whistleblower reprisal. IAF,
Tabs 1, 29. After holding the requested hearing, the administrative judge issued
an initial decision that affirmed the separation, finding that the agency invoked
the RIF regulations for a legitimate reason, i.e., a reo rganization resulting in the
closure of the Siletz Agency, and that the agency properly applied the RIF
regulations as to the appellant’s competitive level and competitive area. IAF,
Tab 53, Initial Decision (ID) at 1, 3-6. The administrative judge additionally
found that the appellant failed to prove his affirmative defenses. ID at 11, 19.
Concerning his age discrimination claim, she found that the appellant failed to
provide sufficient evidence to establish that age was a factor in his separation.
ID at 7-11. Concerning his whistleblower reprisal claim, she found that the
appellant failed to meet his burden of showing that he made a protected
disclosure. ID at 11-15. She then found in the alternative that, if the appellant
had shown that his disclosures were protected, he would have met his burden to
show that they were a contributing factor in his separation because the alleged
retaliating official, the Regional Director, had actual or constructive knowledge
of his disclosures, and because his separation occurred less than 2 years after
them. ID at 15-16. The administrative judge then determined that the agency
nevertheless demonstrated by clear and convincing evidence that it would have
3
separated the appellant notwithstanding any alleged protected disclosures.
ID at 16-19.
¶4 The appellant has filed a petition for review, primarily challenging the
administrative judge’s findings concerning his whistleblower retaliation claim.
Petition for Review (PFR) File, Tab 1. The agency has responded in oppos ition
to the petition for review, and the appellant has replied to the response. PFR File,
Tabs 4-5.
ANALYSIS
The appellant failed to prove that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8).
¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
prevail on a prohibited personnel practice affirmative defense in a chapter 75
appeal that independently could form the basis of an individual right of action
(IRA) appeal, once the agency proves its adverse action case by a preponderance
of the evidence, the appellant must demonstrate 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)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the adverse action. See Alarid
v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that,
under the WPEA, an appellant may raise an affirmative defense of whistleblower
retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), and (D)); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19
(2013) (stating the foregoing proposition concerning disclosures protected by
5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s protected
disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14.
¶6 Under 5 U.S.C. § 2302(b)(8), it is a prohibited personnel practice to take a
personnel action because of any disclosure of information by an employee that the
4
employee reasonably believes evidences any violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of aut hority, or a
substantial and specific danger to public health or safety. The proper test for
determining whether an employee had a reasonable belief that his disclosures
revealed one of the categories of misconduct listed under 5 U.S.C. § 2302(b)(8),
is this: Could a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee reasonably conclude that the
actions of the Government evidence wrongdoing as defined by that statute?
White v. Department of the Air Force, 95 M.S.P.R. 1, ¶¶ 27-28 (2003), aff’d,
391 F.3d 1377 (Fed. Cir. 2004); see also Lachance v. White, 174 F.3d 1378 (Fed.
Cir. 1999).
¶7 Here, the administrative judge identified two alleged protected disclosures
regarding the appellant’s concerns about the administration of the Grand Ronde
Secretarial Election that he made to, among others, the Regional Director, the
Office of Special Counsel (OSC), and his agency’s Office of Inspector General
(OIG). ID at 12-13, 18-19; IAF, Tab 36 at 33-34, Tab 37 at 18-35, 59-60, 75-77,
Tab 49, Hearing Compact Disc (HCD) Nos. 4-5 (testimony of the appellant). The
administrative judge found, however, that the appellant failed to show that a
disinterested observer could reasonably conclude that he disclosed information
evidencing a violation of law, rule, or regulation, gross mismanagement, a gr oss
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety based on the evidence adduced in this appeal. ID at 12 -15.
She therefore found that the appellant did not meet his burden of showing that he
made a protected disclosure. ID at 15. The appellant presents no argument to
challenge these findings on review, and we discern no basis to disturb them.
The appellant failed to prove that his protected activity under 5 U.S.C.
§ 2302(b)(9)(C) was a contributing factor in his separation.
¶8 Although we agree that the appellant failed to meet his burden concerning
his alleged protected disclosures under 5 U.S.C. § 2302(b)(8), we find that the
5
appellant did meet his burden of showing that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). See Alarid, 122 M.S.P.R.
600, ¶ 12. Specifically, under 5 U.S.C. § 2302(b)(9)(C), an employee engages in
protected activity when he discloses information to the agency’s OIG or to OSC
“in accordance with applicable provisions of law.” Here, the record reflects that
the appellant filed complaints with OSC on May 28, 2014, IAF, Tab 37 at 28, 83,
and that, when he did not receive a response from OSC, he filed co pies of his
OSC complaints with OIG, IAF, Tab 1 at 7 n.2, Tab 36 at 33-34. Under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to OIG or OSC is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law. 1 We find that
the appellant’s submissions to both OSC and OIG meet that broad standard and
therefore that these disclosures constitute protected activity under 5 U.S.C.
§ 2302(b)(9)(C).
¶9 Because the appellant established that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(C), he must next establish that the protected activity
was a contributing factor in his separation. See Alarid, 122 M.S.P.R. 600, ¶ 13.
Although the administrative judge determined that, had the appellant established
that he made protected disclosures under section 2302(b)(8), he would have met
his burden of showing that the disclosures were a contributing factor in his
separation, ID at 15-17, we find that the appellant fails to show that his activity
under section 2302(b)(9)(C) was a contributing factor in the agency action.
1
The nature of the disclosures to OIG or OSC may be relevant at the merits stag e of an
IRA appeal, when an appellant must prove the contributing factor element by
preponderant evidence and the agency must defend itself by providing clear and
convincing evidence that it would have taken the same personnel action absent the
protected activity. See Corthell v. Department of Homeland Security, 123 M.S.P.R.
417, ¶ 13 (2016) (setting forth the elements and burden of proving the merits of an IRA
appeal based on a claim of reprisal for perceived activity under 5 U.S.C.
§ 2302(b)(9)(C)).
6
Specifically, there is nothing in the record to show that the Regional Director
knew that the appellant had filed a complaint with OSC or OIG regarding his
concerns about the administration of the Grand Ronde Secretarial Election prior
to the Regional Director’s decision to close the Siletz Agency. Moreover, the
Regional Director, whom the administrative judge found to be credible, ID at 9,
testified that he did not become aware that the appellant had filed a complaint
with OSC until he saw the appellant’s interrogatories in this Board appeal and
that he was unaware until this appeal that the appellant had filed anything formal
about his alleged whistleblowing, HCD No. 2 at 4:09-5:42 (testimony of the
Regional Director). Therefore, although the administrative judge found that the
appellant proved that the Regional Director had actual or constructive knowledge
of his disclosures under section 2302(b)(8), we find that he has failed to show
that the Regional Director knew of his protected activity under
section 2302(b)(9)(C). Accordingly, we find that the appellant has not shown by
preponderant evidence that his disclosures to OSC or OIG were a contributing
factor in his separation.
¶10 The majority of the appellant’s arguments on review concern his challenges
to the administrative judge’s alternate finding that the agency proved by clear and
convincing evidence that it would have separated him in the absence of his
protected activity, arguing that the closure of the Siletz Agency was a pretext for
whistleblower retaliation. 2 PFR File, Tab 1 at 6-15. However, because we have
2
To the extent the appellant’s challenges to the administrative judge’s findings in this
regard could be construed as a challenge to the administrative judge’s determination
that the agency invoked the RIF regulations for a legitimate reason, we find them
unpersuasive. As the administrative judge correctly noted, an agency is accorded a
great deal of discretion in making managerial decisions concerning reorganizations, see
Armstrong v. International Trade Commission, 74 M.S.P.R. 349, 354 (1997), and we
agree with the administrative judge’s findings that the agency established that it
invoked the RIF regulations for a legitimate management reason and that the record
contains no evidence that the reorganization occurred for an improper reason , ID at 3-4.
7
found that he failed to prove that his protected activity was a contributing factor
in his separation by RIF, it is unnecessary to determine whether the agency
proved by clear and convincing evidence that it would have taken the action at
issue in the absence of his protected activity. See Clarke v. Department of
Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016(Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s findings
concerning whether the agency met its clear and convincing burden.
The appellant failed to prove that he engaged in protected activit y under 5 U.S.C.
§ 2302(b)(9)(D).
¶11 When the events at issue in this appeal took place, 5 U.S.C. § 2302(b)(9)(D)
made it a prohibited personnel practice to take an action against an employee for
“refusing to obey an order that would require the individual to violate a law.”
Here, the appellant asserts that he engaged in protected activity when he refused
to obey an order that would have required him to violate 25 C.F.R. part 81, which
governs procedures for secretarial elections. IAF, Tab 36 at 33, Tab 37 at 32, 86.
Our reviewing court held that the protection in section 2302(b)(9)(D) extended
only to orders that would require the individual to take an action barred by
statute. Rainey v. Merit Systems Protection Board, 824 F.3d 1359, 1361-62,
1364-65 (Fed. Cir. 2016). Thus, under the law in effect at the time the relevant
events took place, the appellant’s claim that he disobeyed an order that would
have required him to violate an agency regulation fell outside the scope of
5 U.S.C. § 2302(b)(9)(D). Id.¶12 On June 14, 2017, while this matter was pending before the Board, the
President signed into law the Follow the Rules Act (FTRA), which amended
section 2302(b)(9)(D) by inserting after “law” the words “rule, or regulation.”
Follow the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017). Therefore,
under the FTRA, the appellant’s claim that he disobeyed an order that would
require him to violate an agency regulation falls within the scope of
8
section 2302(b)(9)(D). Accordingly, we must determine whether the FTRA
applies to events that occurred prior to its enactment.
¶13 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in Landgraf
v. USI Film Products, 511 U.S. 244, 280 (1994):
When a case implicates a federal statute enacted after the events in
suit, the court’s first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result.
¶14 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. See, e.g., Presidio Components, Inc. v.
American Technical Ceramics Corp., 702 F.3d 1351, 1364-65 (Fed. Cir. 2012)
(giving retroactive effect to amendments enacted in 2011 in light of express
statutory language applying the amendments to “all cases, without exception, that
are pending on, or commenced on or after, the date of the enactment of this Act”).
Here, the FTRA as enacted is silent regarding retroactivity. 3 Thus, applying the
first part of the Landgraf test, we find that Congress has not expressly prescribed
the statute’s proper reach.
¶15 Turning to the second part of the Landgraf test, we find that the FTRA
would operate retroactively because it would increase a party’s liability for past
3
When it was first introduced in Congress in both 2016 and 2017, the FTRA included a
provision explicitly providing that it would apply only to personnel actions taken after
the date of enactment. H.R. 6186, 114th Cong. (2016); H.R. 657, 115th Cong. (2017).
However, that provision was removed from the version of the bill that eventually
became law. FTRA; see H.R. Rep. No. 115-67, at 3-4 (2017).
9
conduct. As noted above, at the time of the appellant’s separation, it was not a
prohibited personnel practice to take a personnel action against an employee for
refusing to obey an order that required him to violate a rule or regulation. See
Rainey, 824 F.3d at 1361-62.
¶16 There is some indication in the legislative history that Congress intended
the FTRA to clarify the meaning of the original language of 5 U.S.C.
§ 2302(b)(9)(D), which could resolve any retroactivity concerns . See Day v.
Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26 (2013). 4
Specifically, the committee report accompanying the House bi ll that was
eventually adopted by both houses of Congress and signed into law by the
President states in part, “[t]he [FTRA] was introduced to clarify Congress’s
original intent with respect to this provision of the Whistleblower Protection Act
of 1989.” H.R. Rep. No. 115-67, at 3 (2017). However, for the reasons that
follow, we find that the FTRA is not a clarification of the prior law.
¶17 First, although declarations of Congressional intent are relevant in
determining whether a statutory provision is a clarification, such declarations are
entitled to less weight when they appear in legislative history, rather than in the
statute itself. See Cortes v. American Airlines, Inc., 177 F.3d 1272, 1284 (11th
Cir. 1999). Thus, the fact that the committee report includes an expression of
intent to clarify existing law is not sufficient alone to demonstrate that the FTRA
is a clarification.
¶18 Additionally, we find that the Board’s decision in Day is distinguishable
from the instant case. In Day, the Board held that the definition of “disclosure”
4
In his separate opinion in Day, then-Member Robbins wrote that the Board should not
apply the “clarification doctrine” because that doctrine had been rejected by both the
U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court. Day,
119 M.S.P.R. at 602-03 (Robbins, concurring in part and dissenting in part). We
assume for purposes of our analysis in this case that the Board can properly apply the
“clarification doctrine.”
10
in the WPEA could be applied to pending cases without raising retroactivity
concerns because it merely clarified the prior statutory language. Day,
119 M.S.P.R. 589, ¶¶ 10-26. In so holding, the Board noted that the WPEA itself
included language indicating that it was a clarification of prior law. Id., ¶ 12.
The Board also found that the WPEA provided a reasonable resolution to
ambiguity in the prior statutory language. Id., ¶¶ 13-26.
¶19 Here, by contrast, there is nothing in the text of the FTRA itself indicating
that it is intended to clarify, rather than change, prior law; in fact, the text of the
law suggests the opposite. Whereas the preamble to the WPEA includes a
statement that the Act was intended “to clarify the disclosures of information
protected from prohibited personnel practices,” WPEA, Pub. L. No. 112-199,
126 Stat. 1465 (2012), the preamble to the FTRA indicates that it was intended
“to extend certain protections against prohibited personnel practices,” FTRA
(italics added). Additionally, there is no history of conflicting interpretations or
other evidence that the prior statutory language was ambiguous, as there was in
Day. Compare Day, 119 M.S.P.R. 589, ¶¶ 13-17 (recounting the history of Board
and court decisions defining “disclosure”), with Rainey, 824 F.3d at 1361-63(interpreting 5 U.S.C. § 2302(b)(9)(D) and citing no contrary or conflicting case
law). We therefore find that the FTRA is not a clarification of prior statutory
language. Accordingly, we apply the traditional presumption against
retroactivity, see Landgraf, 511 U.S. at 280, and we hold that the FTRA does not
apply to events that occurred before its enactment. Thus, the appellant’s claims
that the agency retaliated against him for refusing to obey orders that would
require him to violate agency rules or regulations are outside the scope of
section 2302(b)(9)(D).
¶20 The appellant appears to have alleged below that the agency retaliated
against him for refusing to obey an order that would have required him to violate
a statute, a claim that does fall within the scope of the pre-FTRA version of
5 U.S.C. § 2302(b)(9)(D). IAF, Tab 37 at 5 (alleging “repeated orders that [the
11
appellant] violate the controlling secretarial election law and regulations”). In
support of that allegation, the appellant cited 25 U.S.C. § 476. Id. That section,
which has been transferred to 25 U.S.C. § 5123, provides general rules for
secretarial elections. Id.¶21 The essence of the appellant’s statutory claim under 5 U.S.C.
§ 2302(b)(9)(D) appears to be that he was improperly ordered “to stay out of the
election process and to defer” to tribal attorneys. IAF, Tab 37 at 42. The
appellant has not explained how such an order would have required him to violate
a statute, and we find that nothing in 25 U.S.C. § 5123 prohibits an agency
employee from deferring to tribal officials. We therefore find that the appellant
failed to establish that he engaged in protected activity under
section 2302(b)(9)(D).
The appellant’s remaining arguments on review do not provide a basis for
reversing the initial decision.
¶22 On review, the appellant argues that the administrative judge abused her
discretion when she “prevented [him] from delivering his planned case -in-chief”
by interrupting his testimony with irrelevant questions and ultimately
discouraging him from continuing to testify. PFR File, Tab 1 at 15-17. It is well
settled that an administrative judge has broad discretion to control the course of
the hearing before her. Lopes v. Department of the Navy, 119 M.S.P.R. 106, ¶ 9
(2012). Rulings regarding the exclusion of evidence are subject to review by the
Board under an abuse of discretion standard. See id., ¶ 11. We have reviewed the
hearing testimony in its entirety and find no abuse of discretion in the
administrative judge’s treatment of the appellant. Specifically, we find that she
did not prevent him from testifying or otherwise obstruct his testimony. Even
assuming she had done so, however, we find that the appellant’s rights were not
prejudiced because the document he claims he was prevented from reading into
the record was already contained in the record, and the appellant has not shown
that the administrative judge failed to consider any relevant evidenc e contained in
12
the document. PFR File, Tab 1 at 6 n.2, 15; IAF, Tab 37; see Marques v.
Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984)
(recognizing that an administrative judge’s failure to mention all of the evidence
of record does not mean that she did not consider it in reaching her decision),
aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In addition, the majority of the
document pertained to the appellant’s arguments concerning the agency’s alleged
failure to meet its clear and convincing burden, and such evidence would not have
resulted in an outcome different from that of the initial decision in light of our
finding that the appellant failed to establish that his protected activity was a
contributing factor in his separation. See Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (reiterating that, to obtain reversal
of an initial decision on the ground that the administrative judge abused his
discretion in excluding evidence, the petitioning party must show on revi ew that
relevant evidence, which could have affected the outcome, was disallowed).
¶23 As alleged new evidence, the appellant submitted the deposition transcripts
of the Regional Director and another official who testified at the hearing, a
highlighted version of the prehearing statement he submitted below, and a
document reflecting the status of an agency position for which he previously
applied. PFR File, Tab 1 at 21-192. Under 5 C.F.R. § 1201.115, the Board
generally will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). The appellant has not made this required showing.
Even if he had, however, he has not shown that the documents are material to his
appeal. See Clarke, 121 M.S.P.R. 154, ¶ 18 (explaining that evidence offered
merely to impeach a witness’s credibility generally is not considered new and
material); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding
that the Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
13
of the initial decision); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980) (finding that evidence that is already a part of the record is not new) .
Accordingly, we have not considered these documents. 5
¶24 We have considered the remaining arguments raised by the appellant on
review, including his allegations concerning the manner in which the
administrative judge drafted the initial decision and analyzed the facts, PFR File,
Tab 1 at 4 n.1, and we find they provide no basis for disturbing the initial
decision. 6
ORDER
¶25 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 7
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 case s fall within their
5
The agency also submitted alleged new evidence on review. PFR File, Tab 4 at 16-30.
We find, however, that the evidence is not material to the outcome of the appeal. See
Russo, 3 M.S.P.R. at 349.
6
The appellant has not challenged the administrative judge’s findings concerning his
age discrimination claim, and we discern no basis to disturb these findings.
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.
14
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
15
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
16
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
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.
17
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
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/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.