UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERMAN BRISCOE HOLMES, DOCKET NUMBER
Appellant, CH-0752-14-0714-I-1
v.
DEPARTMENT OF VETERANS DATE: November 15, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Julius L. Carter, Esquire, Dayton, Ohio, for the appellant.
Demetrious A. Harris, Esquire, Cincinnati, Ohio, 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 his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; t he initial
decision is based on an erroneous interpretation of statute or regulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. See 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 an additional
consideration in the penalty determination, we AFFIRM the initial decision, still
sustaining the removal.
BACKGROUND
¶2 The agency removed the appellant from his position as a Medical Support
Assistant in the Dental Service at a Veterans Affairs (VA) Medical Center facility
in Ohio, effective July 11, 2014, based on a charge of inappropriate conduct.
Initial Appeal File (IAF), Tab 4 at 20, 39. The charge was based on four
specifications: (1) mishandling a December 5, 2013 telephone call from a nurse
who needed to speak to a dentist to obtain post-surgical antibiotics and pain
medication for a veteran; (2) mishandling another December 5, 2013 telephone
call by leaving a veteran on hold for 1 hour before instructing him to call back the
next day to make an appointment; (3) placing a veteran’s wife on hold withou t her
consent for 48 minutes before disconnecting her November 21, 2013 call and
placing her on hold for 12 minutes during her January 2, 2014 call; and
(4) calling his female coworkers “bitches” and using obscene language during a
facilitated training meeting on March 7, 2014. Id. at 39-40.
¶3 The agency informed the appellant that, in proposing his removal, it
considered his prior discipline consisting of a 14-day suspension beginning
3
August 26, 2011, for failure to follow supervisory instructions and ina ppropriate
conduct, and his prior 14-day suspension beginning April 15, 2010, for
inappropriate conduct. Id. at 40. Both of those disciplinary actions occurred
during his employment at the VA Nursing Service before his reassignment to the
Dental Service. Id. at 7, 39.
¶4 After holding a 3-day hearing, the administrative judge issued an initial
decision finding that the agency proved specifications 1 and 4, sustaining the
inappropriate conduct charge, and finding that the appellant failed to prove his
affirmative defenses of harassment based on sexual orientation and retaliation for
filing a police report against his supervisor. IAF, Tabs 34, 37, 40, Hearing
Compact Discs (HCDs); IAF, Tab 41, Initial Decision (ID) at 1, 3-25. The
administrative judge also found that the deciding official’s personal knowledge of
the appellant’s prior disciplinary history did not constitute a violation of
constitutional due process because the appellant was advised in the proposed
removal notice that his prior discipline would be considered and he was aware of
his personal history with the deciding official. ID at 18. The administrative
judge found that the deciding official appropriately considered the relevant
factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981),
that the sustained misconduct was serious, that there was nexus between the
misconduct and a legitimate Government interest, and that the penalty of removal
was within the tolerable bounds of reasonableness. ID at 13, 18-21.
¶5 The appellant has filed a petition for review arguing the following: (1) the
agency violated his due process rights; (2) the administrative judge abused her
discretion by denying the appellant an opportunity to file a post -hearing brief;
(3) the administrative judge erroneously concluded that the agency proved
specifications 1 and 4; and (4) the appellant’s post-traumatic stress disorder
(PTSD) should have been considered as a mitigating factor in the initial decision.
Petition for Review (PFR) File, Tab 1 at 9-16.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly determined that the appellant failed to prove
that he was denied due process.
¶6 When an agency intends to rely on aggravating factors, such as prior
discipline, as the basis for imposing a penalty, such factors should be included in
the advance notice of adverse action so that the employee will have a fair
opportunity to respond to those factors before the agency’s deciding official.
Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 6 (2011). It is improper
for a deciding official to rely on an employee’s alleged negative past work record
in determining the penalty when the employee was not disciplined for the
purported misconduct and which is mentioned as an aggravating factor for the
first time in a Board proceeding. Id. (citing Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999)).
¶7 The Board’s reviewing court has held that, if an employee has not been
given “notice of any aggravating factors supporting an enhan ced penalty[,]” an
ex parte communication with the deciding official regarding such factors may
constitute a constitutional due process violation. Ward v. U.S. Postal Service,
634 F.3d 1274, 1280 (Fed. Cir. 2011). 2 When such circumstances are present, the
court directed the Board to analyze whether the additional aggravating factors
supporting an enhanced penalty constituted new and material information under
the factors set forth in Stone. Id.
¶8 Pursuant to Stone, the Board will consider the following factors, among
others, to determine whether an ex parte contact is constitutionally impermissible:
2
The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of
the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532,
538-39, 546-48 (1985), which held that a tenured public employee has a constitutionally
protected property interest in ongoing public employment and that an agency may not
deprive such an employee of his property interest without providing him with due
process of law, including the right to advance notice of the charges against him, an
explanation of the agency’s evidence, and an opportunity to respond. See Stone,
179 F.3d at 1374-76.
5
(1) whether the ex parte communication merely introduces “cumulative”
information or new information; (2) whether the employee knew of the error and
had a chance to respond to it; and (3) whether the ex parte communications were
of the type likely to result in undue pressure upon the deciding official to rule in a
particular manner. Stone, 179 F.3d at 1377. If a constitutional violation has
occurred, it cannot be considered a harmless error and the agency action must be
reversed. See Ward, 634 F.3d at 1280.
¶9 In his petition for review, the appellant alleges that the administrative judge
erred in not finding a due process violation under the U.S. Court of Appeals for
the Federal Circuit’s decisions in Ward and Stone. PFR File, Tab 1 at 9-14. The
appellant argues that the agency denied his due process rights by failing to inform
him that the deciding official considered misinformation about a prior removal
action. Id. at 12-13. The appellant argues that the deciding official received
ex parte information in a Douglas factor checklist, which incorrectly stated that
the appellant’s past disciplinary history included a removal. Id. at 12; IAF, Tab 4
at 24-28. The appellant argues that the agency did not inform him in the proposal
notice that a prior removal action would be considered, although he was informed
that the agency would consider his two prior 14-day suspensions. PFR File,
Tab 1 at 12-13; IAF, Tab 4 at 39-41. He further argues that he did not have a
prior removal and he had no opportunity to correct this misinformation upon
which the deciding official relied. PFR File, Tab 1 at 12.
¶10 The record does not support a finding that the agency failed to notify the
appellant of an aggravating factor actually relied upon by the deciding official.
The deciding official testified that he considered the Douglas factors in reaching
his decision to remove the appellant, but he did not prepare the Douglas factor
checklist attached to his removal decision. IAF, Tab 34, HCD (testimony of the
deciding official). Although the deciding official testified that he assumed the
checklist was accurate, he further testified that he assumed that the removal
mentioned on the checklist only referred to the removal he was implementing in
6
this case. Id. He also testified that the only past disciplinary actions he
considered were two 14-day suspensions, noting that he believed that he showed
mercy to the appellant when he was the deciding official in one of the actions that
resulted in the appellant’s suspension. Id. The deciding official did not testify
that he considered or relied upon a prior removal or a proposed removal in
addition to the suspensions identified in the proposal notice. Moreover, the
appellant acknowledged that the agency provided notice that his two 14 -day
suspensions would be considered by the deciding official. PFR File, Tab 1 at 12.
¶11 The administrative judge considered but rejected the appellant’s argument
that the deciding official violated his due process rights and placed unfair
emphasis on his past interaction with the appellant and his previous discipline.
ID at 17-18; PFR File, Tab 1 at 12-14. A review of the initial decision shows that
the administrative judge properly evaluated the hearing testimony and made
credibility determinations in accordance with the standards set forth in Hillen
v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-13; see Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate references, and made reasoned conclusions); Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶12 The appellant has not shown that the deciding official’s decision, on the
merits of the underlying charge or the penalty to be imposed, was influenced by
new and material information not previously disclosed to the appellant. 3 First,
3
The appellant filed a prior appeal with the Board challenging the agency’s decision to
remove him from service effective August 26, 2011, for failure to follow supervisory
instructions and inappropriate conduct. IAF, Tab 4 at 97. The agenc y settled that
appeal, by agreeing to reinstate the appellant, reassign him to a Medical Support
Assistant position in the Dental Service, and mitigate the penalty to a 14 -day
suspension. Id. The Medical Center Director who signed the settlement agreement is
the same official who decided to remove the appellant effective July 11, 2014, for the
inappropriate conduct charged in this case. Id. at 99. The agency’s notice of proposed
removal in this case advised the appellant that the agency would consider his past
record, including his 2011 suspension, in determining the proper disciplinary action.
7
the deciding official’s testimony reflects that he was not introduced to new and
material ex parte information about a prior removal action involving the
appellant. Second, the appellant was aware that the deciding official also was
involved in the settlement that mitigated his removal to a 14-day suspension,
which was referenced in the proposal notice; therefore, the appellant had a chance
to respond to it. Third, we find no evidence that the deciding official’s personal
knowledge of the appellant’s past discipline was of the type likely to result in
undue pressure to make any particular decision in this case. See Stone, 179 F.3d
at 1376-77; see also Norris v. Securities & Exchange Commission, 675 F.3d 1349,
1353-54 (Fed. Cir. 2012) (finding that a deciding official’s mere knowledge of an
employee’s earlier misconduct obtained before starting disciplinary proceedings
was not new and material information and did not constitute an improper ex parte
communication). We therefore find that the appellant did not prove that his due
process rights were violated.
The administrative judge did not abuse her discretion by disallowing post -hearing
briefs.
¶13 On review, the appellant also argues that the administrative judge abused
her discretion by reversing her prior decision to allow post -hearing briefs. PFR
File, Tab 1 at 18. We find that the appellant has not shown that the
administrative judge prejudiced his substantive rights or abused her discretion by
disallowing post-hearing briefs after affording the appellant a 3-day hearing to
present his case on his appeal. It is within the administrative judge’s discretion to
keep the record open for a period of time after the hearing to allow the parties to
submit additional evidence and argument. See 5 C.F.R. § 1201.59(a). Moreover,
the appellant has not identified any new evidence, which the administrative
judge’s ruling allegedly precluded him from presenting and would have warranted
Id. at 40. Thus, the appellant knew that this prior history would be considered, and he
was aware that the deciding official had personal knowledge of the prior removal action
that was settled and resulted in the 2011 suspension.
8
an outcome different from that of the initial decision. Therefore, the appellant
has shown no basis for reversing the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating 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 of the initial
decision).
The administrative judge correctly found that the agency proved the charge of
inappropriate conduct.
¶14 The Board’s regulations require that the agency action must be sustained if
it is supported by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(1)(ii).
On review, the appellant argues that the agency failed to prove that he was the
employee who mishandled the December 5, 2013 telephone call from the nurse in
specification 1. PFR File, Tab 1 at 14-15. The appellant also challenges the
administrative judge’s finding that the agency proved specification 4.
Concerning that specification, the appellant argues that he should not be
penalized for speaking candidly as requested by management, and that the Deputy
Service Chief “expected people to offend each other” during the meeting. Id.
at 16. The appellant further argues that he did not direct his offensive words at
any particular person and that he stopped using offensive language when directed
to do so during the meeting. Id. at 18.
¶15 The administrative judge considered the documentary evidence and the
witnesses’ testimony during the 3-day hearing, and she found that the agency
proved by preponderant evidence specifications 1 and 4 and the inappropriate
conduct charge. ID at 3-13. Regarding specification 4, the administrative judge
compared the agency’s version of events during the meeting —that the appellant
said words to the effect of “I want to help people, but when she’s a BITCH, and
she’s a BITCH, and she’s a BITCH, I just want to say FUCK IT!”—with the
appellant’s version—he only stated during the meeting that he “wanted to call
[his female coworkers] bitches or other derogatory words.” ID at 9-12; IAF,
9
Tab 4 at 40 (emphasis in original), 87; IAF, Tab 37, HCD (testimony of the
appellant). The administrative judge found the appellant’s version of the events
“less credible.” ID at 11. The administrative judge based this finding on the
appellant’s inconsistent statements, the largely consistent statements by agency
witnesses that were reduced to writing shortly after the March 7, 2014 training
meeting, the consistency of those written statements with the live testimony of an
agency witness who was present at the meeting, and the “straightforward”
demeanor of that agency witness. 4 ID at 11-12.
¶16 The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Contrary to the
administrative judge, we do not find the appellant’s statements —that he did not
tell his supervisors about bullying based on sexual orientation, but he told the
deciding official during his reply to the notice of proposed removal that the
bullying was based on sexual orientation—to be inconsistent. ID at 11.
However, our disagreement with the administrative judge on this issue does not
warrant a different outcome because it is well established that when, as here, an
administrative judge has heard live testimony, her credibility determinations must
be deemed to be at least implicitly based upon the demeanor of the witnesses.
See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir.
2016) (finding that the Board must defer to an administrative judge ’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed”); Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4
(2009). Therefore, the administrative judge’s credibility determinations are
4
The administrative judge further found that this agency witness had no personal
history with the appellant, was not the target of the derogatory term, and had no motive
to exaggerate her testimony. ID at 11-12.
10
entitled to deference and the appellant has not presented sufficiently sound
reasons to overturn her findings.
¶17 Ultimately, we discern no reason to reweigh the evidence or substitute our
assessment of the record evidence for the thorough, well -reasoned,
demeanor-based findings of the administrative judge. See Crosby, 74 M.S.P.R.
at 105-06; Broughton, 33 M.S.P.R. at 359. We affirm her finding that the agency
proved specifications 1 and 4. Moreover, on review, the appellant does not
specifically dispute that the two sustained specifications are more than sufficient
to sustain the charge. See Burroughs v. Department of the Army, 918 F.2d 170,
172 (Fed. Cir. 1990).
¶18 Although the appellant also claims that the administrative judge omitted
certain material facts, 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. PFR File, Tab 1 at 11; see Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). The appellant’s arguments on review present no reason to disturb the
administrative judge’s finding that the agency proved by preponderant evidence
specifications 1 and 4 and the inappropriate conduct charge.
The removal penalty was reasonable for the sustained misconduct.
¶19 When, as here, 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 the parameters of reasonableness. Payne v. U.S. Postal Service,
72 M.S.P.R. 646, 650 (1996).
¶20 The deciding official considered many relevant mitigating and aggravating
factors, such as the following: the appellant had 3 years and 11 months of
service; his conduct was serious and offensive to his coworkers; and he had
two prior 14-day suspensions for engaging in similar inappropriate conduct. ID
at 14-15; IAF, Tab 4 at 24-28, Tab 34, HCD (testimony of the deciding official).
11
The deciding official determined that removal was reasonable and rehabilitation
was not possible under the circumstances because (1) the appellant’s misconduct
was serious and offensive, (2) he showed no remorse, and (3) he engaged in
inappropriate conduct after two previous 14-day suspensions for similar
inappropriate conduct. ID at 17-18. The administrative judge found that the
agency weighed the relevant factors in implementing the appellant’s removal, and
the penalty of removal does not exceed the bounds of reasonableness. ID
at 14-16, 18-21.
¶21 On review, the appellant reiterates that some of his coworkers made
anti-gay statements and used anti-gay slurs in his presence, which created a
hostile work environment, these coworkers were present during the March 7,
2014 training meeting, and he and his coworkers were encouraged during this
meeting to discuss issues that were going on in the office to improve the work
environment. PFR File, Tab 1 at 5, 9-10. The record reflects that the deciding
official and the administrative judge did not specifically consider the appellant’s
allegations of harassment or bullying based on sexual orientation in their
respective penalty analyses. 5 This was error. The deciding official and the
administrative judge should have considered the appellant’s allegations of
bullying and harassment based on sexual orientation in this regard under
Douglas factor 11, “mitigating circumstances surrounding the offense, such as
unusual job tensions . . . [and/or] . . . harassment.” Douglas, 5 M.S.P.R. at 305;
see Hanna v. Department of Labor, 80 M.S.P.R. 294, ¶ 16 (1998) (stating that the
5
For example, in the Douglas factors worksheet, the deciding official indicated that he
did not consider any mitigating circumstances such as unusual j ob tensions, personality
problems, harassment, or provocation by others involved. IAF, Tab 4 at 27 -28. The
deciding official testified that the appellant presented, as a mitigating circumstance,
that he was treated differently due to his sexual orientati on, but the deciding official
was not asked, and he did not explain, how the appellant was treated differently. IAF,
Tab 34, HCD (testimony of the deciding official). The administrative judge discussed
the appellant’s allegations of harassment or bullyin g in her evaluation of specification 4
and the appellant’s sexual orientation discrimination claim, ID at 10 -11, 13, 21-23, but
she did not specifically discuss them in her penalty analysis, ID at 14 -16, 18-21.
12
Board may consider in its penalty analysis the stress and tension cre ated in a
work environment when there is animus based on the appellant’s national origin
even if it finds that the agency did not discriminate against the appellant).
¶22 Therefore, we modify the initial decision to consider, as a mitigating factor,
the appellant’s statements in the record and his testimony regarding bullying and
harassment in the workplace created by his coworkers’ anti-gay statements and
slurs in his presence, the fact that the coworkers that made the statements and
slurs were present during the March 7, 2014 meeting, and that he and his
coworkers were encouraged to raise issues during this meeting to improve the
office work environment. IAF, Tab 4 at 87, Tab 21 at 20-25, Tab 37, HCD
(testimony of the appellant). For the purposes of our analysis, we credit the
appellant’s statements and testimony in this regard, and we make clear that the
offensive language described by the appellant cannot and should not be tolerated
in the workplace. However, these circumstances do not justify or explain the
appellant’s use of profane and offensive language during the March 7, 2014
training meeting, and we likewise do not condone his use of such language in the
workplace. Moreover, these circumstances have no relation to specification 1,
which we have also sustained herein. We conclude that such evidence does not
warrant mitigation of the removal penalty.
¶23 The appellant further argues that his PTSD and side effects of his
medication should have been considered as mitigating factors in the initial
decision. PFR File, Tab 1 at 18. We find, however, that these factors were
properly considered. ID at 15-16. The administrative judge found that the
appellant did not provide any medical evidence to the deciding official and that
the deciding official did not consider the condition as a mitigating factor. ID
at 15. The administrative judge considered the appellant’s testimony that he did
not recall informing the deciding official that he had PTSD, and that he did not
believe that his disability affected his ability to do his job. Id.; IAF, Tab 37,
HCD (testimony of the appellant). The administrative judge also considered that
13
the appellant submitted evidence on appeal showing that he first sought a doctor’s
assessment on the day that he received the removal notice and that neither his
physician’s letter nor the testimony of witnesses at the hearing attributed the
appellant’s inappropriate conduct to a medical condition. ID at 15. The appellant
submits no new and material evidence to the contrary on review. We therefore
agree with the administrative judge’s finding that the agency did not err in failing
to consider the appellant’s PTSD as a mitigating factor.
¶24 Having considered the appellant’s arguments, we find that removal for the
sustained misconduct is within the limits of reasonableness and promotes the
efficiency of the service. We affirm the initial decision as modified and sustain
the appellant’s removal.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 U.S.C. § 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.
6
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
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
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
15
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
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:
16
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 describe d in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
7
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 f or 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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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.