UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JUSTIN LEE PAYTON,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

AT-0752-15-0696-I-1

DATE: June 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ross Nabatoff, Washington, D.C., for the appellant.

Susan E. Gibson, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

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 in the 

following circumstances: the initial decision contains erroneous findings of 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

material fact; the initial decision is based on an erroneous interpretation of statute 

or regulation or the erroneous application of the law to the facts of the case; the 

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED to 

clarify the analysis applicable to the appellant’s claim of disparate penalties, we 

AFFIRM the initial decision.

BACKGROUND

¶2 The agency removed the appellant from his Deputy U.S. Marshal position, 

which is a law enforcement officer position, based on the charges of conduct 

unbecoming a Deputy U.S. Marshal (2 specifications), criminal misconduct

(2 specifications), and lack of candor (3 specifications). Initial Appeal File 

(IAF), Tab 28, Initial Decision (ID) at 2, Tab 5 at 14. All three charges stem 

from the events that occurred during an off-duty boating trip on July 28, 2012. 

ID at 2; IAF, Tab 5 at 89-103. Charge one alleged that the appellant engaged in 

inappropriate behavior unbecoming a Deputy U.S. Marshal. ID at 2; IAF, Tab 5 

at 90-96. The agency specified as follows: (1) the appellant gave alcoholic 

beverages to a 15-year-old child; and (2) he inappropriately touched her. ID at 2; 

IAF, Tab 5 at 90-96. Charge two alleged criminal conduct based upon the 
3

appellant’s subsequent guilty plea to the misdemeanor of disorderly intoxication. 3 

ID at 2; IAF, Tab 5 at 96. Finally, charge three alleged that the appellant lacked 

candor when he provided statements denying that he inappropriately touched the 

minor, commented that she was “hot,” and gave the minor alcohol (Corona beers). 

ID at 2, 11; IAF, Tab 5 at 97-101. 

¶3 The appellant filed an appeal with the Board disputing that the agency 

proved the charged misconduct. IAF, Tab 1, Tab 17 at 6-7. The appellant also 

argued that the penalty was unreasonable and raised a claim of disparate 

penalties. IAF, Tab 17 at 6-7. After holding the appellant’s requested hearing, 

the administrative judge sustained all three charges and affirmed the agency’s 

removal action. ID at 10-11, 16. In reaching his decision, the administrative 

judge found that there was nexus between the appellant’s proven misconduct and 

the efficiency of the Federal service, that the appellant failed to prove his claim 

of disparate penalties, and that the removal penalty was reasonable. ID at 11-16. 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has responded in opposition to the appellant’s petition 

for review, and the appellant has replied. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant challenges the administrative judge’s credibility 

determinations and his finding that the agency proved the charges of conduct 

unbecoming a Deputy U.S. Marshal and lack of candor. PFR File, Tab 1 at 5-18. 

The appellant also disputes the administrative judge’s findings on nexus, and he 

reasserts his disparate penalties claim, challenging the reasonableness of the 

removal penalty. Id. at 18-23. 

 

3 Charge two originally contained an additional specification struck by the 

administrative judge during the prehearing conference. ID at 2 n.1. 
4

The administrative judge properly found that the agency proved the charge of 

conduct unbecoming a Deputy U.S. Marshal.

4

¶6 A general charge such as conduct unbecoming does not require specific 

elements of proof. It is established by proving that the employee committed the 

acts alleged in support of the broad label. See Canada v. Department of 

Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). The administrative judge 

sustained the charge of conduct unbecoming a Deputy U.S. Marshal as specified,

based on explicit credibility findings from his observation of the witnesses’

testimony at the hearing. ID at 6-11. The administrative judge found the 

agency’s witnesses more credible than the appellant’s denial that he committed 

the acts specified in the charge. ID at 4-11. In support of his finding that the 

appellant was not credible, the administrative judge credited the testimony of two 

witnesses, both of whom were wives of U.S. Secret Service Special Agents, that 

they saw the appellant give beer to the minor. ID at 10. The administrative judge 

also credited the testimony of a Special Agent (the minor’s step-father) and the 

wife of another Special Agent that they saw the appellant inappropriately 

touching the minor on her inner thigh and/or in an intimate area under her shorts. 

ID at 4-5, 11. The administrative judge found that this testimony was credible 

evidence that the appellant engaged in conduct unbecoming a Deputy U.S.

Marshal as specified by the agency. ID at 11.

¶7 On review, the appellant asserts that the administrative judge erred in 

sustaining the specifications of this charge. PFR File, Tab 1 at 4. He challenges 

the administrative judge’s credibility findings by arguing that the minor’s hearsay 

statement to the Office of Inspector General (OIG) investigator is the only proof 

that he gave her Corona brand beers as specified in the charge, and her statement 

should not be credited over his sworn denial that he committed the specified 

 

4 On review, the appellant does not dispute the administrative judge’s finding that the 

agency proved the charge of criminal misconduct based on his no contest plea to a 

second degree misdemeanor of disorderly intoxication. 
5

misconduct. Id. at 6. The appellant further argues that the administrative judge 

ignored the agency’s failure to prove that he gave the minor Corona beers and 

that several people in the group said that they did not see him give her alcohol. 

Id. at 5-10. 

¶8 Concerning the administrative judge’s consideration of the minor’s 

statement to the OIG, which the appellant argues is impermissible hearsay 

evidence, it is well settled that relevant hearsay evidence is admissible in Board 

proceedings and the assessment of the probative value of hearsay evidence 

necessarily depends on the circumstances of each case. See Crawford-Graham v. 

Department of Veterans Affairs, 99 M.S.P.R. 389, ¶ 20 (2005); Borninkhof v. 

Department of Justice, 5 M.S.P.R. 77, 83-84 (1981). Moreover, the essence of 

the charged misconduct is that the appellant provided the minor with alcohol. 

The dispositive issue is not the brand of beer, and the administrative judge did not 

rely solely on the minor’s statement in finding that the agency proved the charge. 

The administrative judge credited the testimony of two witnesses, both of whom 

were wives of U.S. Secret Service Special Agents, that they saw the appellant 

give beer to the minor. ID at 10. To the extent that the appellant is arguing that 

the administrative judge failed to consider evidence that not everyone in the 

group observed him give alcohol to the minor, the administrative judge ’s failure 

to mention all of the evidence of record does not mean that he did not consider it 

in reaching his decision. Marques v. Department of Health and Human Services, 

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 

¶9 The appellant also argues on review that, in finding that he inappropriately 

touched the minor, the administrative judge ignored inconsistencies in the 

testimony of the agency’s witnesses concerning “the seating arrangement at the 

restaurant” and their descriptions of where they observed his hand on the minor’s 

body. PFR File, Tab 1 at 11-15. We find that the minor inconsistencies 

identified by the appellant are insufficient to render incredible the testimony of 

the witnesses credited by the administrative judge in finding that the agency 
6

proved the charged misconduct as specified. See Thomas v. U.S. Postal Service, 

116 M.S.P.R. 453, ¶ 5 (2011) (holding that minor inconsistencies do not 

necessarily render a witness’s testimony incredible). The Board must defer to an 

administrative judge’s credibility determinations when, as here, they are based, 

explicitly or implicitly, on observing the demeanor of witnesses testifying at a 

hearing. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 

2002). 

¶10 The administrative judge credited the agency’s three witnesses who 

testified, inter alia, that they saw the appellant give the minor beer and touch her 

inner thigh or higher. ID at 6. The administrative judge found, among other 

things, that it was inherently improbable that these witnesses would make up 

these types of allegations, considering that they socialized regularly with the 

appellant and had no apparent animosity toward him. Id. We have considered the 

appellant’s arguments on review, but we find that there are not “sufficiently 

sound” reasons on this record to overturn the administrative judge’s findings that 

the appellant was not credible when he denied giving beer to the minor and 

inappropriately touching her thigh. See Haebe, 288 F.3d at 1301. Accordingly, 

we agree with the administrative judge that the agency proved both specifications 

of the conduct unbecoming charge. ID at 10-11. 

The administrative judge properly found that the agency proved the lack of 

candor charge.

¶11 The administrative judge found that the agency proved the lack of candor 

charge as specified because the appellant falsely told an investigator from the 

agency’s OIG that he did not inappropriately touch the minor, he never said that 

the minor was “hot,” and he did not give the minor alcoholic beverages, despite 

preponderant evidence that he did so. ID at 4-6, 11. The administrative judge 

further found that the appellant unequivocally denied inappropriately touching the 

minor when he was interviewed by local police. ID at 5. The administrative 

judge found that the appellant’s denials were not credible, considering, among 
7

other things, that the minor informed the OIG investigator that the appellant 

repeatedly put his hand on her thigh, although she kept removing it, and that he 

had been giving her Corona beer to drink. ID at 7-8. The minor also told the 

investigator that the appellant told her that she was “hot” on a prior boat trip. ID

at 5, 8. Although the minor did not testify at the hearing and her statement was 

unsworn, the administrative judge considered this evidence in addition to the 

highly credible hearing testimony provided by the adults who witnessed the 

specified misconduct and contradicted the appellant’s version of events.

5

 ID

at 4-11. The administrative judge also considered it particularly damaging to the 

appellant’s credibility that he sent text messages to a Secret Service agent and a 

Supervisory U.S. Marshal, before their group boating trip, indicating that he was 

sexually interested in 14- to 16-year-old girls.

6

 ID at 9. 

¶12 The appellant further argues on review that the administrative judge’s 

analysis of the witnesses’ testimony did not conform to the Board’s requirements 

in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987); however, we

find that the administrative judge thoroughly set forth the evidence and properly 

applied the Hillen analysis in making his well-reasoned, demeanor-based 

 

5

In Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 (2016), the Board 

clarified that a charge of lack of candor requires proof of the following elements: 

(1) that the employee gave incorrect or incomplete information; and (2) that he did so 

knowingly. Here, although the administrative judge did not explicitly apply the second 

prong of Fargnoli in assessing this charge, he made comprehensive credibility 

determinations sufficient to satisfy the same. E.g., ID at 6-10. In light of these 

determinations, his failure to explicitly rely on Fargnoli does not provide a basis for 

remanding the matter. Cf. Fargnoli, 123 M.S.P.R. 330, ¶ 18 (remanding for further 

analysis on the lack of candor charge when the administrative judge made no findings 

as to whether the appellant knowingly gave incorrect or incomplete information). 

6

The appellant characterizes his text message as a joke and considers it “ludicrous” that 

the administrative judge considered this evidence in sustaining the charge. PFR File, 

Tab 1 at 15. We find that the administrative judge properly considered the appellant’s 

text message about his sexual interest in young girls as a relevant factor in determining 

his credibility. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)

(listing the inherent probability of a witness’s version of events as one of many factors 

to be considered in making a credibility determination).
8

determination that the agency’s witnesses were more credible than the appellant. 

PFR File, Tab 1 at 11, 17-18; ID at 6-10. We discern no reason to reweigh the 

evidence or substitute our assessment of the record evidence for that of the 

administrative judge. See Haebe, 288 F.3d at 1301 (finding that the Board must 

defer to an administrative judge’s credibility determinations when they are based 

on observing the demeanor of witnesses testifying at a hearing); 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 inferences, and made reasoned conclusions); Broughton v. 

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

The appellant has failed to establish that the administrative judge erred in finding 

that the agency established nexus between his off-duty misconduct and the 

efficiency of the service.

¶13 In addition to the requirement that the agency prove its charges, the agency 

also must prove that there is a nexus to the efficiency of the service, i.e., a clear 

and direct relationship between the articulated grounds for an adverse action and 

either the appellant’s ability to accomplish his duties satisfactorily or some other 

legitimate Government interest. Hoofman v. Department of the Army, 

118 M.S.P.R. 532, ¶ 16 (2012), aff’d, 526 F. App’x 982 (Fed. Cir. 2013). An

agency may show nexus between off-duty misconduct and the efficiency of the 

service by three means: (1) a rebuttable presumption in certain egregious 

circumstances; (2) preponderant evidence that the misconduct adversely affects 

the appellant’s or coworkers’ job performance or the agency’s trust and 

confidence in the appellant’s job performance; or (3) preponderant evidence that 

the misconduct interfered with or adversely affected the agency’s mission. Id. 

¶14 On review, the appellant argues that there is no nexus between the 

efficiency of the service and his off-duty criminal misconduct charge. He bases 

his argument on the erroneous presumption that the agency failed to prove the 

remaining charges of lack of candor and conduct unbecoming. PFR File, Tab 1 
9

at 18-20. In finding that the agency met its burden on nexus, the administrative 

judge found that nexus should be presumed for the appellant’s proven lack of 

candor and that his proven criminal conduct is antithetical to the agency’s law

enforcement mission, especially considering that the appellant is a law 

enforcement officer. ID at 12. The administrative judge also found nexus 

between the proven misconduct and the efficiency of the service because:

The appellant, as a law enforcement officer, carried a firearm and 

was responsible for executing arrest warrants, handling prisoners, 

protecting judges, and investigating and apprehending fugitives. He 

also has a role to play in enforcing the Adam Walsh Act, which deals 

with sex offender registries. Finally, the victim in this case was the 

minor step-daughter of a Secret Service agent, and the appellant’s 

actions jeopardized his relationships with another Federal law 

enforcement agency with which the appellant was required to work 

and interact. 

Id.

¶15 To the extent that the administrative judge found that the agency established 

nexus under the second prong of Hoofman by showing that the appellant’s proven

misconduct adversely affected management’s trust and confidence in his job 

performance, we agree. See Hoofman, 118 M.S.P.R. 532, ¶ 16; Prather v. 

Department of Justice, 117 M.S.P.R. 137, ¶¶ 32-33 (2011) (finding that the 

appellant’s off-duty sexual conduct with vulnerable women adversely affected the 

agency’s trust and confidence in his ability to perform his job as a criminal 

investigator); Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000) 

(finding that the appellant’s lack of candor strikes at the very heart of the 

employee-employer relationship and, thus, directly affects the efficiency of the 

service), aff’d, 278 F.3d 1280 (Fed. Cir. 2002); Honeycutt v. Department of 

Labor, 22 M.S.P.R. 491, 494 (1984) (finding nexus for off-duty arrest for 

first-degree assault and public drunkenness given the sensitive and trustworthy 

nature of the appellant’s duties), aff’d, 770 F.2d 181 (Fed. Cir. 1985) (Table). 

Accordingly, we find that the appellant has failed to establish that the 
10

administrative judge erred in finding that the agency established nexus between 

his proven misconduct and the efficiency of the service. 

The appellant has failed to establish that the administrative judge erred in finding 

that he did not prove his claim of disparate penalties and that the removal penalty 

was reasonable; however, we modify the initial decision to clarify the legal 

standard applicable to a claim of disparate penalties.

¶16 The remaining issue for consideration is whether the penalty of removal is 

reasonable under the circumstances. When, as in this appeal, all of the charges 

are sustained, the Board will review the agency-imposed penalty only to 

determine if the agency considered all the relevant factors and exercised 

management discretion within the tolerable limits of reasonableness. Pinegar v. 

Federal Election Commission, 105 M.S.P.R. 677, ¶ 53 (2007); Douglas v. 

Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The Board will modify a 

penalty only when it finds that the agency failed to weigh the relevant Douglas

factors or that it clearly exceeded the bounds of reasonableness in determining the 

penalty. See Pinegar, 105 M.S.P.R. 677, ¶ 53; Douglas, 5 M.S.P.R. at 306.

¶17 After the initial decision in this case, the Board reinstated its former law 

governing the analysis of disparate penalties claims. Singh v. U.S. Postal Service, 

2022 MSPB 15, ¶ 9. In Singh, the Board held that it should not weigh the relative 

seriousness of various offenses to determine if the agency treated employees who 

committed different acts of misconduct differently; rather, the relevant inquiry is 

whether the agency knowingly and unjustifiably treated employees who engaged 

in the same or similar offenses differently. Id., ¶¶ 14, 17 (overruling Portner v. 

Department of Justice, 119 M.S.P.R. 365 (2013), and Boucher v. U.S. Postal 

Service, 118 M.S.P.R. 640 (2012)).

¶18 On review, the appellant reasserts the disparate penalties claim that he made 

before the administrative judge, arguing that the removal penalty is not 

reasonable because other individuals who have pled guilty to alcohol-related 

criminal violations and incurred multiple administrative penalties have not been 
11

terminated by the agency.7 PFR File, Tab 1 at 21. He argues that he should not 

have been removed based solely on his misdemeanor conviction of disorderly 

intoxication as specified in the criminal misconduct charge. Id. We are not 

persuaded by the appellant’s argument because it is based on a false premise that 

the agency failed to prove the remaining charges concerning his lack of candor

and his conduct unbecoming a Deputy U.S. Marshal. ID at 14. Indeed, the 

appellant has not identified any similarly situated comparator employees who 

were charged with the same or similar three instances of misconduct. Thus, he 

has necessarily failed to show that the agency knowingly and unjustifiably treated 

employees who engaged in the same or similar offenses differently. See Singh,

2022 MSPB 15, ¶¶ 14, 17. 

¶19 We further find that the removal penalty is well within the bounds of 

reasonableness for the sustained misconduct. The appellant in this case was a law 

enforcement officer, and it is well settled that law enforcement officers may be 

held to a higher standard of conduct than other Federal employees. See, e.g.,

Prather, 117 M.S.P.R. 137, ¶ 36. The record reflects that the deciding official 

considered the relevant Douglas factors in deciding on the removal penalty, 

including but not limited to the appellant’s 10 years of service, the nature and 

seriousness of his misconduct considering his law enforcement position, and his 

4 prior disciplinary actions indicating a pattern of off-duty misconduct and no 

rehabilitation potential. IAF, Tab 5 at 17-21, 104-06. 

 

7

The appellant identified the following as alleged comparator employees who were not 

removed for alcohol-related offenses: (1) an employee who was previously suspended 

for misuse of a credit card and for failing to report damage to a Government-owned 

vehicle and was pending decision on a proposed 30-day suspension for driving while 

intoxicated (DWI); (2) an employee who was reprimanded, although his prior record 

included a 30-day suspension for DWI, a second DWI, and a misdemeanor conviction 

for chemical dependency and fleeing the scene of an accident; and (3) an employee

whose removal was proposed and had a prior DWI and misdemeanor for failing to 

consent to a blood-alcohol test. ID at 13; PFR File, Tab 1 at 21-23. 
12

¶20 The administrative judge found that the appellant expressed no remorse for 

his misconduct and agreed with the deciding official’s conclusion that the 

appellant had no potential for rehabilitation. ID at 16. The administrative 

judge’s findings about the appellant’s propensity for rehabilitation are necessarily 

intertwined with issues of credibility and an analysis of his demeanor at the 

hearing, and they deserve deference from the Board. See Purifoy v. Department 

of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016). We find that the

appellant’s arguments on review do not establish any error in the administrative 

judge’s finding that the removal penalty was reasonable for his proven 

misconduct. Accordingly, we deny his petition for review. 

NOTICE OF APPEAL RIGHTS8

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

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.

 

8

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.
13

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 
14

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. 420 (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: 
15

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. 9 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). 

 

9

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction ex pired 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. 
16

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board