Arthur Fisher v. Department of the Interior

                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      

                             Docket 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 

 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. 

. 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.          

. The appellant’s separation was effective December 4, 2015. 

.
¶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 

(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 

(b)(8) or engaged in protected
     activity under 

(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, 

, ¶¶ 12-13 (2015) (recognizing that,
     under the WPEA, an appellant may raise an affirmative defense of whistleblower
     retaliation based on protected activity under 

(b)(9)(A)(i), (B),
     (C), and (D)); Shibuya v. Department of Agriculture, 

, ¶ 19
     (2013) (stating the foregoing proposition concerning disclosures protected by
     

(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, 

, ¶ 14.
¶6        Under 

(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 

(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, 

, ¶¶ 27-28 (2003), aff’d,
     

 (Fed. Cir. 2004); see also Lachance v. White, 

 (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 

(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 

(b)(8), we find that the
                                                                                          5

     appellant did meet his burden of showing that he engaged in protected activity
     under 

(b)(9)(A)(i), (B), (C), or (D). See Alarid, 

, ¶ 12. Specifically, under 

(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 

(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 

(b)(9)(C).
¶9         Because the appellant established that he engaged in protected activity
     under 

(b)(9)(C), he must next establish that the protected activity
     was a contributing factor in his separation. See Alarid, 

, ¶ 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, 

, ¶ 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 

(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, 

, 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, 

, ¶ 19 n.10 (2014), aff’d, 

      (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 

(b)(9)(D).
¶11         When the events at issue in this appeal took place, 

(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, 

, 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
      

(b)(9)(D). 

¶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, 

 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, 

, 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., 

, 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, 

.
¶16         There is some indication in the legislative history that Congress intended
      the FTRA to clarify the meaning of the original language of 

(b)(9)(D), which could resolve any retroactivity concerns .        See Day v.
      Department of Homeland Security, 

, ¶¶ 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., 

, 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,
      

, ¶¶ 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, 

 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, 

, ¶¶ 13-17 (recounting the history of Board
      and court decisions defining “disclosure”), with Rainey, 

      (interpreting 

(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, 

, 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
      

(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 

. 

 That section,
      which has been transferred to 

, provides general rules for
      secretarial elections. 

¶21            The    essence     of     the   appellant’s     statutory    claim      under   

(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 

 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, 

, ¶ 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, 

, 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, 

 (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, 

, ¶ 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 

, 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,
      

, 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, 

, ¶ 18 (explaining that evidence offered
      merely to impeach a witness’s credibility generally is not considered new and
      material); Russo v. Veterans Administration, 

, 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, 

, 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 (

).

                                NOTICE OF APPEAL RIGHTS 7
             You may obtain review of this final decision. 

(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.              

(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.               

(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.     

(b)(2); see Perry v. Merit Systems
Protection Board, 

 , 

.              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. 

(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. 

(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 

(b)(8) or
other protected activities listed in 

(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.

(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,

.
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      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.