Lamonte Purifoy v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LAMONTE L. PURIFOY, DOCKET NUMBER
Appellant, CH-0752-14-0185-M-1

v.

DEPARTMENT OF VETERANS DATE: May 16, 2022
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lamonte L. Purifoy, Milwaukee, Wisconsin, pro se.

Erin Buck Kaiser, Milwaukee, Wisconsin, for the agency.

BEFORE

Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member

FINAL ORDER

¶1 This case is before the Board on remand from the U.S. Court of Appeals for
the Federal Circuit. Originally, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 40-day suspension. Upon the agency’s
petition for review, the Board reversed the mitigation and reinstated the removal.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The Federal Circuit vacated the Board’s final order and remanded the case for
further consideration. For the reasons discussed below, and having considered
the issues raised in the court’s Opinion and Order, we GRANT the agency’s
petition for review, REVERSE the initial decision that mitigated the appellant’s
removal to a 40-day suspension, and REINSTATE the appellant’s removal.

BACKGROUND
¶2 The agency employed the appellant as a WG-2 Housekeeping Aid. Purifoy
v. Department of Veterans Affairs, MSPB Docket No. CH-0752-14-0185-I-1,
Initial Appeal File (IAF), Tab 10a at 24. When he began employment with the
agency in August 2011, he was on parole, having been sentenced to prison for
felony burglary, and was subject to the supervision of a parole agent. Id. at 133.
As part of his parole, he was required to report for visits every other week with
his parole agent and to refrain from using illegal substances and alcohol. Hearing
Transcript (HT) at 6-7 (testimony of the parole agent). The appellant admitted to
violating his parole by using illegal drugs in October and December 2012. Id.
at 6; IAF, Tab 35 at 18, 21. Although he was taken into custody, he was released
in January 2013, placed on maximum supervision, required to sign rules of
community supervision, and referred to community-based treatment. HT at 6
(testimony of the parole agent); IAF, Tab 35 at 18, 21-22. The appellant failed to
report to his supervised visits on March 22 and April 2, 2013 . HT at 6 (testimony
of the parole agent); IAF, Tab 35 at 25-26. He also failed to report to work on
April 4 and 5, 2013. IAF, Tab 10a at 57.
¶3 On April 8, 2013, after asking the proposing official 2 for permission, but
without filling out the proper paperwork or contacting his first-line supervisor as
instructed by the proposing official, the appellant was admitted via the emergency

2
The appellant’s third-line supervisor was the Acting Hospital Housekeeping Officer
and served as the proposing official in this action. HT at 105, 107, 114 (testimony of
the proposing official).
 3

room to an agency substance abuse program. HT at 108 (testimony of the
proposing official); IAF, Tab 10a at 39-40. He then was transferred to another
agency facility’s substance abuse program. IAF, Tab 10a at 40. During this time,
although the appellant was required to contact his parole agent to notify her of his
whereabouts, he did not do so. HT at 18-19 (testimony of the parole agent).
¶4 The parole agent directed the appellant to report to her office on May 1,
2013. Id. at 8-9. Thus, on May 1, 2013, the appellant was discharged from the
agency facility by bus to report to his parole agent. IAF, Tab 9 at 9. He did not
report to the parole agent. Accordingly, on May 4, 2013, the parole agent issued
a warrant for his arrest based upon continued violations of his parole, as well as
violations of the rules of community supervision that he had agreed to in
January 2013, including the following: (1) failing to be present for a scheduled
home visit on or about March 22, 2013; (2) failing to report for a scheduled office
visit on or about April 2, 2013; (3) absconding from his supervision beginning on
or about April 2, 2013, by leaving his whereabouts and activities unknown;
(4) consuming alcohol, by his own admission, in April and May 2013; and
(5) failing to report to the parole agent’s office on or about May 2, 2013, as
directed. IAF, Tab 35 at 7.
¶5 The appellant did not turn himself in to the detention facility until May 9,
2013. HT at 9-10 (testimony of the parole agent), 176-79 (testimony of the
appellant); IAF, Tab 35 at 22. One week after arriving at the detention facility,
he was offered the opportunity to enroll in a substance abuse treatment program,
which was located within the detention facility. HT at 11-12 (testimony of the
parole agent), 179-80 (testimony of the appellant); IAF, Tab 9 at 7, Tab 35
at 14-15. On June 4, 2013, the appellant agreed to enroll in the program within
the detention facility, and he began treatment at the end of July 2013, when a new
session started. HT at 11-13 (testimony of the parole agent), 179-80 (testimony
of the appellant); IAF, Tab 9 at 7. On September 23, 2013, the appellant was
found guilty of threatening another inmate and, therefore, was terminated from
 4

the treatment program and returned to the general population of the detention
facility on September 27, 2013. IAF, Tab 35 at 24, 27. He was released from the
detention facility on November 4, 2013, and returned to work on November 7,
2013. HT at 14 (testimony of the parole agent), HT at 119 (testimony of the
proposing official).
¶6 Although the proposing official told the appellant to inform his first -level
supervisor that he would be away from work and that he needed to complete
certain forms to request leave, the appellant failed to do so. HT at 108, 112 -13,
118-19 (testimony of the proposing official). When the appellant returned to
work, he still had not completed the necessary paperwork for his absence, as
instructed by the proposing official. HT at 118-19 (testimony of the proposing
official).
¶7 Meanwhile, the agency had issued the appellant a duty status letter on
May 9, 2013, which was returned as undeliverable on May 30, 2013. IAF,
Tab 10a at 81-82. On July 29, 2013, while the appellant was still in the detention
facility, the agency proposed to remove him based upon one charge of absence
without leave (AWOL) since April 4, 2013. Id. at 74-76. In response, the
appellant asserted, among other things, that the proposing official allowed him to
seek treatment in the agency facility. Id. at 61-70. After considering his
response, the agency rescinded this proposal on October 8, 2013, and reissued
another proposed removal that same date. Id. at 56-58. In the new proposed
removal, the agency charged the appellant as follows: (1) 2 days of unauthorized
absence on April 4 and April 5, 2013; and (2) an extended unauthorized absence
due to incarceration of approximately 6 months beginning from the date he
entered the detention facility on May 7, 2013, and continuing until the issuance of
the proposal on October 8, 2013. Id. at 57-58. The appellant also responded to
this proposal from the detention facility. Id. at 39-53. On October 29, 2013,
while the appellant still was in the detention facility, the Medical Center Director
 5

issued a decision sustaining both charges and imposing his removal, effective
November 15, 2013. Id. at 27-29.
¶8 The appellant filed the instant appeal challenging his removal and requested
a hearing. IAF, Tab 1. After holding a hearing, the administrative judge
sustained charge 1, sustained charge 2 as to only the 5-week period from
September 27 until November 4, 2013, and mitigated the removal to a 40-day
suspension. IAF, Tab 40, Initial Decision (ID). Regarding the second charge, the
administrative judge found that the agency had not proven that the appellant’s
absence was unauthorized until he was terminated from the substance abuse
treatment program and returned to the general population of the detention facility
on September 27, 2013. ID at 6-10.
¶9 The agency filed a petition for review challenging the administrative
judge’s decision to sustain only a portion of the second charge and to mitigate the
penalty. Petition for Review (PFR) File, Tab 1. Without addressing whether the
agency proved all of the second charge, the Board granted the agency’s petition,
finding that mitigation was not appropriate, and reinstated the appellant’s
removal. Purifoy v. Department of Veterans Affairs, MSPB Docket
No. CH-0752-14-0185-I-1, Final Order (June 11, 2015). The appellant appealed
the Board’s final order to the Federal Circuit, which vacated the decision and
remanded the case for further adjudication. Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367 (Fed. Cir. 2016). Specifically, the court found that the
Board failed to properly consider the adequacy and effectiveness of alternative
sanctions to deter similar misconduct in the future and the potential for the
appellant’s rehabilitation. Id. at 1371-73. The court instructed that, in
considering the appellant’s potential for rehabilitation on remand, the Board must
afford “special deference” to the administrative judge’s findings regarding the
appellant’s propensity for rehabilitation because these findings are “necessarily
intertwined” with credibility findings. Id. at 1372-73. Further, the court
 6

encouraged the Board to “revisit its analysis of these factors alongside all other
relevant Douglas factors on remand.” Id. at 1373.

DISCUSSION OF ARGUMENTS ON REVIEW
¶10 When the Board sustains all of an agency’s charges, the Board may mitigate
the agency’s original penalty to the maximum reasonable penalty when it finds
the agency’s original penalty too severe. Brough v. Department of Commerce,
119 M.S.P.R. 118, ¶ 9 (2013). Notwithstanding that authority, the Board has long
held that, when all of the charges are sustained, even when some of the
specifications are not, the agency’s penalty determination is entitled to deference
and should be reviewed only to determine if the agency considered all of the
relevant factors and exercised its discretion within the tolerable limits of
reasonableness. 3 Id. In doing so, the Board must give due weight to the agency’s
primary discretion in maintaining employee discipline and efficie ncy, recognizing
that the Board’s function is not to displace management’s responsibility, but to
ensure that managerial judgment has been exercised properly. Id.
¶11 In assessing the reasonableness of a penalty, the Board places primary
importance upon the nature and seriousness of the offense an d its relation to the
appellant’s duties, position, and responsibilities, including whether the offense
was intentional or was repeated frequently. Batara v. Department of the Navy,
123 M.S.P.R. 278, ¶ 8 (2016). The Board also will consider how the appellant’s
misconduct affected the agency’s mission. See Jones v. U.S. Postal Service,
103 M.S.P.R. 561, ¶ 21 (2006), aff’d, 214 F. App’x 984 (Fed. Cir. 2007).
¶12 For the reasons set forth below, and after careful consideration of our
reviewing court’s concerns, we find that the removal penalty is within the
tolerable limits of reasonableness, particularly given the seriousness of the

3
When, as here, the Board has not sustained the entire period of the appellant’s
extended absence, it will consider the penalty as if the charge was sus tained but not all
of the underlying specifications were sustained. See Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
 7

appellant’s misconduct and the negative effect of his absence on the agency’s
ability to care for veterans, and we reinstate the removal penalty.

The appellant’s extended unauthorized absence was a serious offense that
adversely affected the agency’s mission of serving veterans.
¶13 We find that the appellant’s misconduct is serious and that, contrary to the
administrative judge’s finding, the fact that the agency did not prove all of the
second charge does not lessen the seriousness of the misconduct. ID at 11. The
administrative judge found that the proven misconduct was less severe than the
agency’s charge of unauthorized absence for 6 months because, ultimately, the
agency only proved that the appellant’s absence was unauthorized for 40 days
(the 2 days noted in the first charge and the 38 days that followed his separation
from the treatment program in the second charge). Id. However, the Board
repeatedly has held that an appellant’s extended absence is a serious offense and,
even only considering the sustained length of time, the absence here was
substantial. See, e.g., McCauley v. Department of the Interior, 116 M.S.P.R. 484,
¶¶ 2, 14 (2011) (stating that the appellant’s misconduct was serious and supported
the removal penalty when he had been absent for more than 20 consecutive
workdays); Thom v. Department of the Army, 114 M.S.P.R. 169, ¶¶ 2, 7 (2010).
Accordingly, we find that the seriousness of the appellant’s misconduct weighs
strongly in favor of reinstating the removal penalty.
¶14 In addition to the seriousness of the appellant’s misconduct, we find that the
effect of the appellant’s extended absence on the agency’s ability to accomplish
its important mission weighs strongly in favor of reinstating the removal penalty.
The deciding official testified, “my responsibility to the veterans that we serve is
to make sure that there is a workforce available to . . . do the work.” HT at 79
(testimony of the deciding official). He further testified that t he appellant’s
position is essential because it keeps the medical center clean and meeting certain
standards. Id. He also testified that, if there is insufficient staffing, it creates a
burden for the facility and “. . . if [he is] unable to maintain the facility
 8

appropriately because [he does] not have people to do so, then that creates a
liability for the facility in the delivery of care to the veterans.” Id. Additionally,
the deciding official testified that the appellant’s absence specifically affected the
agency’s mission because it required the agency to supplement its staff. Id. at 62.
Accordingly, we find that the appellant’s absence affected the agency’s ability to
accomplish its critical mission to care for veterans and that this serves as an
aggravating factor. See Leach v. Department of Veterans Affairs, 107 M.S.P.R.
229, ¶¶ 14-15 (2007) (finding that the deciding official properly considered
relevant factors such as the fact that the appellant’s absence placed an additional
workload on coworkers).

The deciding official’s loss of confidence in the appellant and his concern that
the appellant’s misconduct conveyed a negative message to other employees are
also aggravating factors.
¶15 Further, the deciding official testified that he did not think that the
appellant “was going to come back and be a good employee ” and, according to
the Douglas factors worksheet, which the deciding official considered in
imposing the appellant’s removal, his supervisors “lost all confidence in his
ability to perform his assigned duties” because he was not present to perform
them. IAF, Tab 10a at 35; HT at 61, 66 (testimony of the deciding official).
Thus, we find that this factor also weighs in favor of reinstating the removal
penalty. See Young v. U.S. Postal Service, 79 M.S.P.R. 25, 40 (1998)
(considering the deciding official’s statement that he lost confidence in the
appellant’s ability to perform her position in sustaining her removal for AWOL).
We also have considered as an overall aggravating factor the fact that, although
the appellant’s misconduct was not particularly notorious, the deciding official
was concerned about the message that permitting the appellant’s misconduct
conveyed to other employees, the veterans, and the public. HT at 65 (test imony
of the deciding official).
 9

The appellant’s notice regarding a possible adverse action and the consistency of
the agency’s action with its table of penalties are not mitigating factors.
¶16 Next, we find that the appellant’s notice about possible agency adverse
action in response to his absence and the consistency of the removal penalty with
the table of penalties are not mitigating factors. The administrative judge found
that, because the agency told the appellant that he could be away from work to
obtain substance abuse treatment, he rightfully believed that his absence was
authorized as long as he continued to be in treatment. ID at 12. We must defer to
this finding, because it is “necessarily intertwined” with an analysis of the
appellant’s demeanor when he testified that he believed that he had permission to
receive treatment. See Purifoy, 838 F.3d at 1373; HT at 196 (testimony of the
appellant). Nevertheless, there is no basis for finding that the appellant believed
that any permission from the agency to get treatment extended to the period when
he was released into the general detention facility population after threats he
made to another inmate, considering he was terminated from the treatment
program at that time. ID at 9-10; HT at 108-09, 112-13 (testimony of the
proposing official), 166 (testimony of the human resources specialist). Thus, we
find that the fact that the agency told the appellant that he could receive treatment
does not serve as a mitigating factor because the sustained conduct here occurred
after he had received said treatment.
¶17 We also find that the removal penalty is consistent with the table of
penalties and thus is not a mitigating factor. The administrative judge considered
that a 40-day suspension was consistent with the agency’s table of penalties for a
third offense of unexcused or unauthorized absence. ID at 12; IAF, Tab 10a
at 142, 144. However, the deciding official testified that the appellant’s
prolonged absence would have been considered more than a third offense. HT
at 93 (testimony of the deciding official). In any event, even assuming that the
appellant’s misconduct only constituted a third offense, the agency’s table of
penalties provides that the penalty for a third offense of unexcused or
 10

unauthorized absence is a 14-day suspension to removal. IAF, Tab 10a at 144.
Therefore, while the administrative judge’s analysis is correct that a 40-day
suspension is consistent with the table of penalties, the penalty of removal also is
consistent with the table of penalties. Accordingly, the agency’s chosen penalty
did not exceed that recommended by the table of penalties and is within the
tolerable limits of reasonableness.

The agency’s removal of other employees for prolonged unexcused absences and
the deciding official’s concern about the adequacy of a lesser penalty to deter
future misconduct supports the removal penalty.
¶18 Next, we have considered that the agency has imposed removals in similar
situations. According to the Douglas factors worksheet, the appellant’s facility
had removed a number of employees for extended, unexcused absences and
AWOL, even when the employee had no previous discipline. IAF, Tab 10a at 35.
We find that this factor favors reinstating the removal penalty.
¶19 Additionally, pursuant to the Federal Circuit’s instructions, we have
reconsidered “the adequacy and effectiveness of alternative sanctions to deter
such conduct in the future by the employee or others.” Purifoy, 838 F.3d
at 1371-72 (citing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981)). The deciding official here expressed concerns about deterring similar
misconduct by other employees and the message that imposing a lesser penalty
would send to other employees. HT at 65-66 (testimony of the deciding official);
IAF, Tab 10a at 38. The proposing official testified that he would object to the
appellant returning to the workplace because of the negative precedent such an
action would set. HT at 119-20 (testimony of the proposing official). We find
that this demonstrates a proper exercise of management discretion and thus find
that this factor supports reinstating the removal penalty. See, e.g., Washington v.
U.S. Postal Service, 35 M.S.P.R. 195, 200 (1987) (finding that the agency did not
abuse its discretion in determining that a penalty less than the appellant’s removal
would be inadequate to deter the appellant’s continued conduct).
 11

The mitigating factors do not outweigh the seriousness of the misconduct and the
negative effect of his absence on the agency’s ability to care for veterans.
¶20 Consistent with the Federal Circuit’s instruction, we also have reconsidered
the appellant’s potential for rehabilitation and find that it serves as a mitigating
factor. Purifoy, 838 F.3d at 1372-73. The administrative judge found that the
appellant cares about his job and, although he did not complete the substance
abuse program in the detention facility, he continued to complete treatment and
had not suffered a relapse. ID at 12; HT at 198 (testimony of the appellant). We
defer to the administrative judge’s finding, based upon these facts, that the
appellant had a good potential for rehabilitation, because the finding implicitly
relies on a determination that the appellant appeared credible at the hearing when
he described his rehabilitative efforts. See Purifoy, 838 F.3d at 1372.
Specifically, the appellant testified that he was attending meetings for substance
abuse treatment three times per week and that he had not suffered a relapse since
being released from the detention facility. HT at 198 (testimony of the
appellant). We thus find that the appellant’s potential for rehabilitation is a
mitigating factor. See Batara, 123 M.S.P.R. 278, ¶ 18 (considering that the
appellant’s actions in completing a drug treatment program could constitute a
mitigating factor demonstrating his potential for rehabilitation).
¶21 Further, we are sympathetic to the fact that the appellant was suffering from
substance abuse and mental health issues during his absence. IAF, Tab 35 at 22.
However, the administrative judge sustained the unexcused absence charge based
upon the period after his discharge from the substance abuse program when he
threatened another individual and not based upon his treatment in the program,
thus diminishing the mitigating weight of this factor. ID at 6-10; see Saiz v.
Department of the Navy, 122 M.S.P.R. 521, ¶ 14 (2015) (finding that the
appellant’s completion of inpatient and outpatient drug and alcohol treatment was
a mitigating factor but that the value of this factor was diminished by the fact that
he did not participate in this treatment until after the incident in question).
 12

¶22 We also have considered other mitigating factors. In particular, the
appellant’s 2 years, 9 months, and 12 days of military service is a mitigating
factor. IAF, Tab 10a at 134; see Boo v. Department of Homeland Security,
122 M.S.P.R. 100, ¶ 21 (2014) (finding that the appellant’s lengthy military
service was a mitigating factor). Likewise, we agree with the administrative
judge that, because the appellant’s job duties did not involve supervision or
fiduciary duties and his position was not prominent, the nature of his position is a
mitigating factor. ID at 11-12; IAF, Tab 10a at 34. Nevertheless, because the
deciding official was concerned that the appellant’s position required him to
interact with veterans, their families, and the public, we find that the mitigating
weight of this factor similarly is diminished. IAF, Tab 10a at 34.
¶23 Next, we find that the appellant’s excellent job performance is a mitigating
factor. He began employment with the agency as a Housekeeping Aid on
August 14, 2011. Id. at 129. The agency quickly promoted him, effective
April 22, 2012. Id. at 121. The appellant received fully successful or excellent
ratings in all elements and received an overall excellent rating i n his performance
appraisal that covered the period from April 13 to September 30, 2012. Id.
at 122-27; see Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671, ¶ 12
(2010) (considering mitigating factors such as the appellant’s selection for a
promotion and an “outstanding” rating on his last performance appraisal), aff’d,
415 F. App’x 240 (Fed. Cir. 2011). Additionally, as the administrative judge
found, prior to his absence, the appellant did not have a disciplinary record,
which weighs in favor of mitigation. ID at 11; see Saiz, 122 M.S.P.R. 521, ¶ 13.
¶24 However, despite the appellant’s favorable job performance, he only was
employed with the agency from August 2011, to November 2013, and, during that
time, he was in treatment or otherwise in the detention facility from April until
November 2013. HT at 14 (testimony of the parole agent); IAF, Tab 10a
at 27-29, 129. Thus, we find that the fact that he actually worked at the agency
for fewer than 2 years diminishes the mitigating value of his job performance.
 13

See Simmons v. Department of the Air Force, 99 M.S.P.R. 28, ¶¶ 41, 44 (2005)
(finding that the deciding official properly considered that the appellant
committed the charged misconduct after being employed with the agency for only
approximately 18 months), aff’d sub. nom. Gebhardt v. Department of the Air
Force, 186 F. App’x 996 (Fed. Cir. 2006).
¶25 Based upon the foregoing, we find that, despite several mitigating factors,
including the appellant’s potential for rehabilitation and his excellent—but
brief—job performance, the agency exercised its discretion within the tolerable
limits of reasonableness by removing the appellant based upon the seriousness of
his extended absence for 40 days, its effect on the agency’s ability to care for
veterans, and the deciding official’s concerns about imposing a lesser penalty.
See McCauley, 116 M.S.P.R. 484, ¶¶ 2, 14 (sustaining the appellant’s removal
based upon her absence for more than 20 consecutive workdays); Thom,
114 M.S.P.R. 169, ¶¶ 2, 7 (finding that removal was a reasonable penalty for
AWOL of almost 1 month); Maddux v. Department of the Air Force, 68 M.S.P.R.
644, 645-46 (1995) (finding that removal was a reasonable penalty for
approximately 2 weeks of AWOL, despite the fact that there were mitigating
factors, including the employee’s personal issues). Accordingly, the removal
penalty is reinstated.

NOTICE OF APPEAL RIGHTS 4
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

4
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

appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
 15

for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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. 5 The court of appeals must receive your

5
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.
 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 particu lar
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.