UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTINE BELGUM,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DE-0752-17-0120-A-1

DATE: January 23, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Hartley David Alley, Esquire, San Antonio, Texas, for the appellant.

Deborah M. Levine, Esquire, Denver, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review of the addendum initial decision,

which ordered the agency to pay the appellant $72,501.66 in attorney fees and

costs. For the reasons discussed below, we GRANT the agency’s petition for

review. Except as expressly MODIFIED by this Final Order to adjust the

reasonable hourly rate of attorney fees, we AFFIRM the initial decision.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant filed a timely appeal of the agency’s decision to remove her

from Federal service, effective December 13, 2016. Belgum v. U.S. Postal

Service, MSPB Docket No. DE-0752-17-0120-I-2, Tab 46, Initial Decision

(I-2 ID) at 1 (Dec. 12, 2017). The appellant, a member of the United Postmasters

and Managers of America (UPMA), was represented in the appeal by private

counsel obtained by the UPMA. Addendum Petition for Review File (APFR)

File, Tab 16 at 9. The administrative judge reversed the appellant’s removal on

due process grounds. I-2 ID at 1, 13, 17. The initial decision became the final

decision of the Board after neither party filed a petition for review. I-2 ID at 20.

The appellant filed a petition for attorney fees, requesting $64,725 in

attorney, paralegal, and travel fees, and $7,129.08 in costs, for a total of

$71,854.08, incurred in connection with her removal appeal. Belgum v. U.S.

Postal Service, MSPB Docket No. DE-0752-17-0120-A-1, Attorney Fees File

(AFF), Tab 1 at 4, 28, 30. She requested an additional $3,600 in fees for work

her attorney performed on her attorney fee motion. AFF, Tab 5 at 4, 11. In

support of her motion, the appellant submitted a copy of the December 22, 2016

fee agreement that she entered into with her attorney, reflecting an agreed upon

rate of $400 per hour for his work, $150 per hour for his travel time, and $150 per

hour for paralegal work. AFF, Tab 2 at 4, Tab 7 at 4-9. She also submitted

declarations under penalty of perjury from her attorney and other attorneys

attesting to the reasonableness of those rates. AFF, Tab 1 at 14-15, Tab 2 at 5-8.

The administrative judge issued an addendum initial decision granting the

appellant’s motion for attorney fees and expenses for $72,501.66. AFF, Tab 15,

Addendum Initial Decision (AID) at 1, 12. The administrative judge found that

the appellant was the prevailing party and that fees were warranted in the interest

of justice because the agency’s act of depriving the appellant of her property

interest without minimum due process was clearly without merit. AID at 3-4. He

found that she was entitled to attorney fees because there was no double recovery

2
or fee splitting issue concerning her representation by a private UPMA-retained

attorney. AID at 8-9. He also determined that, even though the appellant’s

attorney was private retained counsel for the UPMA, he was entitled to market

rate fees. AID at 8. He further found that the hourly rates requested were

reasonable because they were the rates identified in the December 2016 retainer

agreement and the appellant showed that they were commensurate with the local

prevailing rate for similar services in Denver, Colorado, which the administrative

judge determined was the community in which her attorney ordinarily practiced.

AID at 5-7. He calculated the lodestar at 158.5 hours at $400 per hour for

attorney work, 30.5 hours of attorney travel at $150 per hour, and 2.8 hours at

$125 per hour for paralegal work, and awarded her fees in the amount of $68,325.

AID at 9-10. Finally, he found that some of the appellant’s claimed expenses

were not recoverable and thus, reduced her allowable costs to $4,176.66. AID

at 11-12.

The agency has filed a petition for review challenging the administrative

judge’s decision to find the appellant’s requested attorney hourly rate of $400

reasonable. APFR File, Tab 3 at 5-17. The appellant has filed a response. APFR

File, Tab 8.

Because the record appeared to be inadequately developed, the Acting

Clerk of the Board ordered the appellant to submit any agreements between the

appellant and the UPMA regarding her legal representation, and any agreements

between the appellant’s attorney and the UPMA as to the legal representation of

the appellant in particular and members of the UPMA in general, to the extent

that they existed. APFR File, Tab 9 at 1-3. The Acting Clerk of the Board also

afforded the appellant an opportunity to provide argument and evidence as to

which agreement most accurately reflected the maximum reasonable hourly rate

and why, if the rates included therein were different from those reflected in the

December 2016 retainer agreement. Id. at 3. The appellant objected to the show

cause order, but nonetheless provided a copy of her agreement with the UPMA

3
and an agreement between her attorney and the UPMA regarding the legal

representation of UPMA members in general. APFR File, Tab 14 at 4-18, Tab 16

at 7-16. The appellant filed the agreements with the Board by mail and requested

that they be placed under seal, in accordance with the administrative judge’s

Protective Order entered into the record in the initial appeal. APFR File, Tab 14

at 5; Belgum v. U.S. Postal Service, MSPB Docket No. DE-0752-17-0120-I-1,

Initial Appeal File (IAF), Tabs 12-13. The agency submitted a response,

attaching the legal representation agreements, and filed it with the Board’s

e-Appeal Online Repository. APFR File, Tab 16. The appellant submitted a

reply, arguing that the agency and the Board violated the terms of the Protective

Order by allowing the documents to appear in the “open record.” APFR File,

Tab 17 at 4-9. The agency submitted a further reply. APFR File, Tab 18.

DISCUSSION OF ARGUMENTS ON REVIEW

We find no merit to the appellant’s objection to the Acting Clerk of the Board’s

order and deny her request to file the legal representation agreements under seal.

The appellant raises two primary challenges in her response to the Acting

Clerk of the Board’s show cause order. First, the appellant argues that the Acting

Clerk exceeded her authority because, in ordering the appellant to submit the

legal representation agreements, the Acting Clerk effectively overruled the

administrative judge’s decision to deny the agency’s discovery request

concerning those documents, which, she argues, the Office of the Clerk of the

Board is prohibited from doing in the absence of a Board quorum. APFR File,

Tab 14 at 5-6. The administrative judge denied the agency’s request to reopen

discovery because it was procedurally defective and untimely. AFF, Tab 14.

That is an appropriate basis upon which to deny a discovery request. See Golden

v. U.S. Postal Service, 60 M.S.P.R. 268, 271 n.* (1994) (finding that the

administrative judge properly dismissed the appellant’s motion to compel

discovery because it was untimely). Nonetheless, the Board is obligated to

comply with its statutory duty that only reasonable attorney fees are awarded.

4
Kling v. Department of Justice, 2 M.S.P.R. 464, 470 (1980); see 5 U.S.C.

§ 7701(g)(1). The Board has the authority to “order any Federal agency . . . to

comply with any order” related to its adjudication of “all matters within [its]

jurisdiction.” 5 U.S.C. § 1204(a)(1)-(2). In considering petitions for review, the

Board may issue a decision, hear oral arguments, require briefing, remand for

further adjudication, or take any other action necessary for the final disposition of

the case. 5 C.F.R. § 1201.117(a). The Board has delegated to the Office of the

Clerk of the Board the authority to sign and issue orders to show cause. Morris v.

Department of the Navy, 123 M.S.P.R. 662, ¶ 11 n.8 (2016); MSPB Organization

Functions and Delegations of Authority at 8-9 (April 2011), https://

www.mspb.gov/foia/files/

Organization_Functions_and_Delegations_of_Authority_1279407.pdf (last visited

January 23, 2024).

The appellant also argues that the legal representation agreements are

covered by the Protective Order and should be filed under seal. APFR File,

Tab 14 at 5. Pursuant to the Protective Order, the administrative judge agreed to

seal, upon request, any documents, which current or former employees “would

reasonably expect the employer to maintain as private,” such as “personal data

identifiers, medical and health information,” and employment records. IAF,

Tab 12 at 4, 6, Tab 13 at 3. We find that the legal agreements do not fall into the

category of documents discussed by the Protective Order. Moreover, contrary to

the appellant’s assertion, the documents are not “open record[s]”; they are not

available to the public by e-Appeal Online or through the Board’s website. See

Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 23 n.5

(2012). Accordingly, we deny the appellant’s request to seal all or part of the

record.

 The appellant’s attorney is entitled to $56,651.66 in fees and expenses.

To establish entitlement to an award of attorney fees under 5 U.S.C.

§ 7701(g)(1), an appellant must show the following elements: (1) she was the

5
prevailing party; (2) she incurred attorney fees pursuant to an existing

attorney-client relationship; (3) an award of fees is warranted in the interest of

justice; and (4) the amount of fees claimed is reasonable. Driscoll v. U.S. Postal

Service, 116 M.S.P.R. 662, ¶ 7 (2011). The administrative judge found that the

appellant met the first three elements. AID at 3-4. These findings are supported,

well-reasoned, and unchallenged on review. Id. Accordingly, we decline to

revisit them here and focus on the agency’s challenges to the administrative

judge’s finding regarding the final element—the reasonableness of the fees

claimed.

In determining the reasonable fee award, the Board first calculates the

“lodestar”—the product of the reasonable hourly rate multiplied by the hours

reasonably spent working on the matter. Driscoll, 116 M.S.P.R. 662, ¶ 10. To

establish the appropriate hourly rate, an attorney fee petition must contain a copy

of a fee agreement, if any, as well as evidence of the attorney’s customary billing

rate for similar work. Hart v. Department of Transportation, 115 M.S.P.R. 10,

¶ 14 (2010). When it is agreed that a specific fee be paid to an attorney for legal

services rendered on behalf of an appellant in a Board case, the Board presumes

that the amount agreed upon represents the maximum reasonable fee that may be

awarded. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 7

(2015). This presumption is rebuttable by convincing evidence that the agreed

upon rate was not based on marketplace considerations and that the attorney’s

rate for similar work was customarily higher, or by showing that he had agreed to

such a rate only because of the employee’s reduced ability to pay and that his

customary fee for similar work was significantly higher. Id. 

The appellant’s attorney is entitled to market rate fees.

The agency reasserts that there is an outstanding question whether the

Board is prohibited from awarding the appellant’s attorney fees based on his

relationship with the UPMA. APFR File, Tab 3 at 12-15. When a union or

related entity retains a private attorney on an appellant’s behalf, the union or

6
entity is viewed as a party standing in the appellant’s shoes, and attorney fees

may be awarded. Jennings v. Department of the Navy, 45 M.S.P.R. 615, 616 n.1

(1990). Moreover, as the administrative judge properly found, private counsel

retained by a union or similar entity are generally entitled to market rate fees if

there is no impermissible fee splitting arrangement. AID at 8; see Thompson v.

Department of Justice, 115 M.S.P.R. 564, ¶¶ 10-13 (2010). The appellant is not

limited to recovery of her actual costs of $6,000. See Thompson, 115 M.S.P.R.

564, ¶ 10. 

We agree with the administrative judge that there is no indication that the

appellant’s attorney would be engaging in impermissible fee splitting with the

UPMA. AID at 8-9; see Model Rules of Prof’l Conduct R. 5.4 (2021) (finding

that attorneys are generally prohibited from sharing fees with non-attorneys, or

forming a business entity controlled, even in part, by non-attorneys). As reflected

in the UPMA attorney legal representation agreement, the parties do not have a

fee-splitting arrangement. APFR File, Tab 16 at 10-16. Rather, the appellant’s

attorney agreed to refund the UPMA for fees and expenses paid to him in

connection with his representation of a UPMA member. Id. at 14; AFF, Tab 5

at 7, Tab 7 at 7, Tab 11 at 3. His reimbursement obligations are distinct from a

fee sharing arrangement, and they do not pose the ethical dilemma of fee splitting

that may otherwise prevent him from receiving market rate attorney fees. See

Sailor-Nimocks v. Office of Personnel Management, 66 M.S.P.R. 438, 441-43

(1995) (finding no ethical dilemma regarding fee-sharing when the attorney

agreed to reimburse her union employer for the expenses incurred and the union

would not profit from the attorney fee award), abrogated on other grounds by

Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000). Accordingly,

we find that the appellant’s attorney is entitled to market rate attorney fees.

7
The maximum reasonable rate for the work performed by the appellant’s

attorney is $300 per hour.

Regarding the reasonableness of the attorney’s hourly rate, the

administrative judge found that the requested hourly rate of $400 for attorney

work performed was reasonable. AID at 5-6. In so finding, he concluded that,

based on the December 2016 retainer agreement, $400 was the maximum

reasonable hourly rate. AID at 5-6. The administrative judge did not have the

benefit of reviewing the UPMA-attorney representation agreement when he made

that finding. However, we consider the issue of which agreement most accurately

reflects the maximum reasonable hourly rate because the parties have had an

opportunity to fully address this issue on review and because, as previously

noted, the Board is obligated to comply with its statutory duty that only

reasonable attorney fees are awarded. APFR File, Tabs 9, 14, 16-18; see Kling,

2 M.S.P.R. at 470.

Pursuant to the UPMA-attorney representation agreement, the UPMA

agreed to pay the appellant’s attorney an hourly rate of $300 for his work

performed in all covered appeals, which apparently includes removal appeals,

such as the underlying action at issue here. 2 APFR File, Tab 16 at 9, 10-12. The

appellant’s attorney signed the UPMA-attorney representation agreement in

August 2016, about 5 months prior to signing the December 22, 2016 fee

agreement. Id. at 16; IAF, Tab 7 at 9. The UPMA-attorney representation

agreement stated that it would “commence on November 1, 2016, and remain in

effect until April 30, 2019.” APFR File, Tab 16 at 15. Further, the agreement

applied to all covered actions, indicating that $300 was the customary rate the

appellant’s attorney charged the UPMA for representing members, such as the

appellant, in removal appeals before the Board, such as the underlying action

2

 Pursuant to the December 2016 retainer agreement, the appellant agreed to pay her

attorney hourly fees of $400 per hour for services not covered by the UPMA. AFF,

Tab 7 at 6-7. However, there is no indication that any of the fees and expenses incurred

in connection with her removal appeal were for services not covered by the UPMA.

APFR File, Tab 16 at 11-12.

8
here. Id. at 11-12. The record reflects that, on December 20, 2016, the appellant

signed a UPMA Designation of Representation and Subscription to Appeal form

designating the UPMA legal defense representative as her representative and

authorizing him to proceed with a Board appeal on her behalf. Id. at 9. 

Based on the foregoing, we find the UPMA attorney legal representation

agreement covered the legal services at issue here, and that it created a rebuttable

presumption that a $300 hourly rate represents the maximum reasonable hourly

rate which may be awarded. See Caros, 122 M.S.P.R. 231, ¶ 7. We turn next to

the question of whether the appellant has rebutted that presumption by convincing

evidence by showing that the agreed upon rate was not based on marketplace

considerations and that the attorney’s rate for similar work was customarily

higher, or by showing that he had agreed to such a rate only because of the

employee’s reduced ability to pay and that his customary fee for similar work was

significantly higher. Id. 

In deciding this issue, we consider the additional sworn statement that the

appellant’s attorney submitted on review, in which he reasserts that he was

entitled to the $400 hourly rate based on his experience and expertise in this field

and alleges that, in two initial decisions, the Board’s administrative judges found

$400 to be his customary and reasonable hourly rate. APFR File, Tab 14 at 8-15,

18. We also consider the December 2016 retainer agreement as evidence that the

appellant’s attorney may charge higher rates to individual clients. 3 IAF, Tab 7

at 9. In addition, we consider the declarations under penalty of perjury from two

3

 The agency argues that the December 2016 fee agreement is fraudulent. APFR File,

Tab 3 at 6-8. The agency speculates that the appellant’s attorney falsely represented to

the Board that the fee agreement was from 2016, when it clearly related to the parties’

2018 engagement because it discussed a claim for suspension without pay that did not

arise until 2018. Id. at 7-8. The agency raises this argument for the first time on

review. The Board will not consider an argument raised for the first time in a petition

for review absent a showing that it is based on new and material evidence not

previously available despite the party’s due diligence. Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980). The agency has not made this showing; therefore,

we decline to consider this argument.

9
attorneys that the appellant submitted to support the requested $400 hourly rate.

AFF, Tab 2 at 5-8.

Even if this evidence showed that the customary hourly rate or fees for the

appellant’s attorney were generally higher, the appellant has not met her burden

of rebutting the presumed reasonableness of the agreed upon hourly rate of $300.

The appellant has not provided any argument or evidence indicating that her

attorney agreed to that reduced fee based on her or the UPMA’s ability to pay, for

example. Cf. Ishikawa v. Department of Labor, 26 M.S.P.R. 258, 260 (1985)

(finding that the appellant’s attorney successfully rebutted the presumption that

the agreed upon rate was the maximum fee awardable by showing that she had

agreed upon that rate only because of the employee’s reduced ability to pay and

that her customary fee for similar work was significantly higher); see generally

Caros, 122 M.S.P.R. 231, ¶ 7. Moreover, the appellant has failed to show that the

agreed upon hourly rate of $300 was not based on marketplace considerations.

See Caros, 122 M.S.P.R. 231, ¶ 7. As stated by our reviewing court, a contract

for services that contains an hourly rate is evidence of the local market rate

“because the client freely agreed to pay the rate[] by entering into the contract.”

Willis v. U.S. Postal Service, 245 F.3d 1333, 1340 (Fed. Cir. 2001). While the

initial decisions referred to by the appellant on review may support her attorney’s

allegation that his rate was generally higher, they are not binding precedent on

the Board. See Roche v. Department of Transportation, 110 M.S.P.R. 286, ¶ 13

(2008) (stating that the Board’s initial decisions are not precedential), aff’d,

596 F.3d 1375 (Fed. Cir. 2010).

While the appellant has provided declarations under penalty of perjury

from two attorneys in support of the requested $400 hourly rate, we find this

evidence, even coupled with evidence relating to the appellant’s attorney’s

customary rate, falls short of the convincing evidence needed to rebut the

reasonableness of the agreed upon $300 hourly rate. As noted by the

administrative judge, the relevant legal market for setting the hourly rate is the

10
community in which an attorney ordinarily practices and not the geographic

location of a Board office. Id.; AID at 7; see 5 C.F.R. § 1201.203(a)(3);

64 Fed. Reg. 72040, 72041 (Dec. 23, 1999) (explaining that amendments to

5 C.F.R. § 1201.203(a)(3) were intended to ensure that an attorney received the

billing rate for location where he ordinarily practices and not based on the

geographic location where the hearing was held). The administrative judge found

Denver, Colorado to be the relevant geographic community and the parties have

not provided a basis for disturbing this finding on review. AID at 7-8. One of

the declarations, submitted from an attorney who is licensed in Texas and

maintains offices in San Antonio, Texas, states that “rates of up to $650” are

reasonable for representation in appeals before the Board’s offices. AFF, Tab 2

at 7-8. This declaration does not shed light on the customary market rate for

Denver, Colorado, and is therefore unpersuasive. 

The second declaration, submitted from an attorney who maintains offices

in Windsor, Colorado, also appears to describe billing practices in relation to the

geographic location of Board offices. AFF, Tab 2 at 5-6. The attorney states,

among other things, that “billing rates of $400.00 per hour for a qualified attorney

and $175.00 per hour for paralegal work are customary and reasonable rates for

representation of [F]ederal employees in appeals of adverse actions brought

before the [Board]’s . . . Denver Field Office, the Dallas Regional Office, and the

Atlanta Regional Office.” Id. at 6. Even if this attorney’s declaration could be

construed as reflecting a $400 per hour customary rate for the Denver, Colorado

community, it is insufficient, even coupled with evidence regarding the

customary rate of the appellant’s attorney, to rebut the presumed reasonableness

of the $300 hourly rate. “[I]n the context of a different but comparable fee

recovery statute,” Willis, 245 F.3d at 1341, our reviewing court stated that “the

trial court should demand adequate proof from individuals familiar with the

market of the community billing rate charged by attorney of equivalent skill and

experience performing services of similar complexity,” Raney, 222 F.3d at 938.

11
The declaration at issue provides no indication that that attorney has knowledge

of the work the appellant’s attorney performed in this appeal, or any clear

indication that the $400 per hour rate applies to services of similar complexity to

those provided by the appellant’s attorney in the instant matter. We also note

that, in the declaration, the attorney does not indicate whether he has prevailed on

a fee petition before the Board and, if so, what hourly rate was awarded. See

Willis, 245 F.3d 1333, 1340 (noting that evidence indicating that the appellant’s

attorneys’ rates were found reasonable “lends credence to the assertions in their

affidavits that their rates were indeed average”). 

Accordingly, we find that the appropriate rate for calculating the lodestar is

$300 per hour for the work performed by the appellant’s attorney, and modify the

initial decision in this regard. The parties do not dispute the administrative

judge’s finding that the hourly rates of $150 for travel time and $125 for

paralegal work were reasonable, and we discern no basis for altering those

findings. AID at 9.

The lodestar must be recalculated.

As the administrative judge explained, AID at 9, the burden of establishing

the reasonableness of the hours claimed in an attorney fee request is on the party

moving for an award of attorney fees, Driscoll, 116 M.S.P.R. 662, ¶ 11. The

administrative judge found that the appellant claimed 158.5 hours for attorney

work (149.5 hours plus an additional 9 hours litigating the motion for attorney

fees), 30.5 hours of travel time, and 2.8 hours of paralegal time. AID at 9; AFF,

Tab 1 at 28, Tab 5 at 11. Although the agency argued that a reduction in the

hours was warranted, the administrative judge found that the claimed hours were

reasonable and that no reduction was warranted. AID at 10. The parties do not

challenge this finding on review; therefore, we decline to revisit it.

As a result, we multiply the claimed attorney time, 158.5 hours, by the

lowered reasonable rate of $300 per hour ($47,550); the claimed travel time,

30.5 hours, by the reasonable travel rate, $150 per hour ($4,575); and the claimed

12
paralegal time, 2.8 hours, by the paralegal rate, $125 per hour ($350); for a total

of $52,475. AID at 9; see Driscoll, 116 M.S.P.R. 662, ¶ 10. The administrative

judge found no basis for adjusting the lodestar, and we discern none. AID at 10;

see e.g., Driscoll, 116 M.S.P.R. 662, ¶ 10 (providing that the lodestar amount

may be adjusted upwards or downwards based on various considerations,

including the results obtained). Consequently, we reduce the appellant’s fees

from $68,325, to $52,475 in fees, and modify the initial decision accordingly. 4

The administrative judge found that the appellant was entitled to $4,176.66

in compensable expenses. AID at 10-12. As the parties do not challenge this

finding, we decline to reconsider it on review. Accordingly, we find that the

appellant is entitled to $52,475 in fees, and to $4,176.66 in compensable

expenses, for a total award of $56,651.66.

ORDER

We ORDER the agency to pay the attorney of record $56,651.66 in fees.

The agency must complete this action no later than 20 days after the date of this

decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.

§ 1204(a)(2)). 

We also ORDER the agency to tell the appellant and the attorney promptly

in writing when it believes it has fully carried out the Board’s Order and of the

actions it has taken to carry out the Board’s Order. We ORDER the appellant and

the attorney to provide all necessary information that the agency requests to help

it carry out the Board’s Order. The appellant and the attorney, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant or the attorney

that it has fully carried out the Board’s Order, the appellant or the attorney may

4

 Neither party has challenged the administrative judge’s decision not to adjust the

lodestar. AID at 10; see generally Driscoll, 116 M.S.P.R. 662, ¶¶ 10, 16 (explaining

that it may be appropriate to reduce the lodestar to reflect a party’s failure to obtain all

the relief he requested).

13
file a petition for enforcement with the office that issued the initial decision on

this appeal, if the appellant or the attorney believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a). 

NOTICE OF APPEAL RIGHTS5

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. 

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.

5

 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
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

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,

15
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: 

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 

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(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.6 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). 

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. 

6

 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. 

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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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

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