UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD W. COLEMAN JR.,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-1221-22-0109-W-1

DATE: August 14, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael J. Riselli, Esquire, Alexandria, Virginia, for the appellant.

Supraja T. Murali, Esquire, and Lundi McCarthy Shafiei, Esquire, 

Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

that the appellant failed to meet his jurisdictional burden, we AFFIRM the initial

decision. 

BACKGROUND

¶2 The appellant was hired as a Supervisory Explosive Specialist with the

Pentagon Force Protection Agency (PFPA) in the Hazardous Device Branch

(hereinafter referred to as the Bomb Squad), effective June 22, 2008. Initial

Appeal File (IAF), Tab 13 at 5-6, 41. This position was within the National

Security Personnel System and included a 25% hazardous duty pay (HDP)

supplement. Id. at 9, 42-45; see 5 U.S.C. § 5545(d)(2); 5 C.F.R. § 550.904. In or

around September 2014, an anonymous complaint was made to the Department of

Defense’s Office of the Inspector General (DoD OIG) alleging that members of

the Bomb Squad were improperly receiving the HDP supplement. IAF, Tab 2

at 16-17. On January 23, 2015, Bomb Squad employees were called to a meeting

with agency managers and Human Resources (HR) officials and informed that

they had been erroneously receiving the HDP supplement and that the supplement

would be discontinued. IAF, Tab 2 at 17, Tab 13 at 11. The HDP supplement

was discontinued effective the following day, January 24, 2015. IAF, Tab 13

2
at 12. During a subsequent meeting with the HR Director on April 24, 2015,

Bomb Squad employees were provided with a written memorandum explaining

the basis for the January 2015 decision. 2 IAF, Tab 2 at 103-04, Tab 13 at 12-13.

Specifically, they were informed that based on an analysis of the affected

employee’s positions descriptions (PDs) and in accordance with regulations

setting forth the requirements for entitlement to HDP, 5 C.F.R. § 550.904, the

employee’s PDs “inaccurately captured [their] eligibility for [HDP],” and they

were “erroneously receiving [HDP] differential.” IAF, Tab 2 at 103.

Consequently, the PDs for affected employees were revised to remove the

references to HDP and were reissued. Id. 

¶3 Starting after the January 23, 2015 meeting, the appellant began a

multi-year campaign challenging the agency’s decision to rescind the HDP

supplement through a variety of avenues, including by contacting various DoD

officials, Members of Congress, the DoD OIG, and the Office of Personnel

Management. On April 3, 2017, the appellant filed an OSC Form 12 “Disclosure

of Information” complaint with OSC’s Disclosure Unit (DU) regarding the

alteration of the PDs and the elimination of HDP. IAF, Tab 2 at 20-28, Tab 21

at 27-30. That complaint was closed out and referred to the Complaints

Examining Unit (CEU) on November 21, 2017. IAF, Tab 2 at 7. On October 19,

2017, the appellant filed an OSC Form 11 “Complaint of Possible Prohibited

Personnel Practice or Other Prohibited Activity” with OSC’s CEU regarding the

cessation of the HDP supplement, among other things. 3 Id. at 8-19, Tab 21 at 33-

2

 Members were also informed at that time that the agency would seek repayment of the

HDP overpayment dating back to 2011, although all debts that resulted from the HDP

overpayment were later waived. IAF, Tab 13 at 12-13 & n2. 

3

 The DU does not review allegations of prohibited personnel practices, and the Board

has held that making a disclosure to the Disclosure Unit does not satisfy the exhaustion

requirement under 5 U.S.C. § 1214(a)(3). Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 9 (2016); Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 16 (2011). After the appellant filed these complaints with OSC,

OSC reorganized its components such that the functions previously performed by the

CEU are now performed by the Investigation and Prosecution Division. 

3
37. By a letter dated November 18, 2021, OSC informed the appellant that it did

not intend to seek corrective action on his behalf but that his complaint remained

open. IAF, Tab 14 at 158. The letter also informed the appellant that he had

exhausted his administrative remedies with OSC and provided him with notice of

his right to file an IRA appeal with the Board. Id. 

¶4 On December 3, 2021, the appellant filed the instant IRA appeal alleging

that the agency continuously denied him HDP in retaliation for his

whistleblowing disclosures and activities. IAF, Tab 1. The administrative judge

issued an IRA jurisdiction order that notified the appellant of his jurisdictional

burden and instructed him to submit evidence and argument establishing Board

jurisdiction over his appeal. IAF, Tab 6. After the appellant filed his

jurisdictional response, IAF, Tabs 12-14, the administrative judge issued a second

jurisdictional order noting that the appellant’s initial response was insufficiently

specific to allow her to make a jurisdictional determination, IAF, Tab 16. She

reopened the record on jurisdiction, instructed the appellant to identify specific

information for each of his protected disclosures or activities and retaliatory

personnel actions, and included a template for the appellant to provide the

information she required to make a jurisdictional determination. Id. at 1-3. 

¶5 After the appellant submitted a corrected supplemental jurisdictional

response4, IAF, Tabs 21-22, the administrative judge issued an initial decision

without holding the appellant’s requested hearing, dismissing the appeal for lack

of jurisdiction, IAF, Tab 24, Initial Decision (ID) at 1, 10. Specifically, the

administrative judge concluded that the appellant failed to nonfrivolously allege

that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), id. at 6-10, and

that even if he nonfrivolously alleged that he engaged in protected activity under

5 U.S.C. § 2302(b)(9)(A) or (C) in connection with his complaints to the OIG and

Members of Congress, he nevertheless failed to nonfrivolously allege that he was

4

 The administrative judge rejected the appellant’s initial supplemental jurisdictional

response for failure to comply with her instructions. IAF, Tab 20. 

4
subjected to a covered personnel action under 5 U.S.C. § 2302(a) because the

only personnel action he was challenging—the discontinuation of the HDP

supplement—occurred in January 2015, before he engaged in any of the alleged

protected activities. ID at 10. In making this finding, she acknowledged but

rejected the appellant’s argument that each of the agency’s subsequent refusals to

reinstate HDP should have been considered separate personnel actions for the

purpose of establishing Board jurisdiction over his IRA appeal. ID at 10.

¶6 The appellant timely filed a petition for review of the initial decision.

Petition for Review File (PFR), Tab 1. The agency filed a response in opposition

to the petition for review, and the appellant filed a reply. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The appellant argues on review that the administrative judge erred by

rejecting his argument that he has been subjected to a “continuing retaliatory

personnel action, or more correctly, a series of continuing retaliatory personnel

actions” based on the agency’s discontinuation of his HDP supplement after

January 23, 2015. PFR File, Tab 1 at 6-9. He also argues that the administrative

judge erred by concluding that he failed to make protected disclosures under

5 U.S.C. § 2302(b)(8) in connection with his challenges to the agency’s HDP

discontinuation decision. Id. at 9-14. Finally, he argues that she erred by failing

to address his argument that he engaged in protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i) when he filed classification appeals with the Office of

Personnel Management (OPM) in 2017 and 2020 challenging the agency’s

decision to discontinue the HDP supplement. Id. at 18-19.

Applicable legal standard.

¶8 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his administrative remedies before OSC and makes nonfrivolous

allegations that (1) he made a protected disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)

5
(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a

contributing factor in the agency’s decision to take or fail to take a personnel

action as defined under 5 U.S.C. § 2302(a). Edwards v. Department of Labor,

2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967 (Fed. Cir. July 7, 2023); Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). 

¶9 A nonfrivolous allegation of a protected whistleblowing disclosure is an

allegation of fact that, if proven, would show that the appellant disclosed a matter

that a reasonable person in his position would believe evidenced one of the

categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,

123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower

has a reasonable belief in the disclosure is an objective one: whether a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the employee could reasonably conclude that the actions of the

agency evidenced a violation of any law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8). 

¶10 An appellant must make specific and detailed allegations; vague,

conclusory, or unsupported allegations, such as one that essentially repeats the

legal standard, without more, are pro forma and insufficient to meet the

nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶¶ 6, 8

(2016), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on

other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11. As

the U.S. Court of Appeals for the Federal Circuit held, “the question of whether

the appellant has non-frivolously alleged protected disclosures that contributed in

a personnel action must be determined based on whether the employee alleged

sufficient factual matter, accepted as true, to state a claim that is plausible on its

face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed.

Cir. 2020). In addition, “the Board may not deny jurisdiction by crediting the

agency’s interpretation of the evidence as to whether the alleged disclosures fell

6
within the protected categories or whether the disclosures were a contributing

factor in an adverse personnel action.” Id. If an appellant establishes jurisdiction

over his IRA appeal, he is entitled to a hearing on the merits of his claim, which

he must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.

OSC Exhaustion.

¶11 The substantive requirements of exhaustion are met when an appellant has

provided OSC with sufficient basis to pursue an investigation that might lead to

corrective action. Chambers v. Department of Homeland Security, 2022 MSPB 8,

¶ 10 (citations omitted). However, an appellant may give a more detailed account

of his whistleblowing activities before the Board than he did to OSC. Id.;

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 7. An appellant

may demonstrate exhaustion through his initial OSC complaint, evidence that he

amended the original complaint, including but not limited to OSC’s determination

letter and other letters from OSC referencing any amended allegations, and the

appellant’s written responses to OSC referencing the amended allegations.

Skarada, 2022 MSPB 17, ¶ 7. An appellant may also establish exhaustion

through other sufficiently reliable evidence, such as an affidavit or declaration

attesting that the appellant raised with OSC the substance of the facts in the

Board appeal. Chambers, 2022 MSPB 8, ¶ 11.

¶12 The administrative judge determined that the appellant exhausted with OSC

his claim that he was subjected to a decision concerning pay or benefits under

5 U.S.C. § 2302(a)(2)(A)(ix) when the agency continuously refused to reinstate

the HDP supplement. Although she did not make specific findings concerning

which of the appellant’s alleged disclosures or activities he exhausted with OSC,

we agree that he has demonstrated exhaustion as to all 11 potential disclosures or

activities he identified in his supplemental response to her jurisdictional order.

IAF, Tab 21 at 9-39. 

7
¶13 Regarding the retaliatory personnel actions, the appellant alleged in his

OSC complaint that he was continuously denied HDP, Stand By Pay (SBP), and

Law Enforcement Assistance Pay (LEAP). IAF, Tab 2 at 13-18. However, in his

supplemental jurisdictional pleading, he acknowledged that he was not

challenging the denial of SBP and LEAP as a part of his IRA appeal. IAF, Tab 21

at 33 n.14. Additionally, he alleged that in retaliation for Disclosures 6, 8, 10,

and 11, the agency subjected him to an “illegal reassignment,” and referenced

5 U.S.C. § 2302(a)(2)(A)(iv), which identifies “a detail, transfer, or

reassignment” as a covered personnel action. IAF, Tab 21 at 21-39. Although the

appellant’s original OSC complaint does not reference his alleged retaliatory

reassignment, some of the documents the appellant states that he provided to OSC

do reference an alleged “reassignment” starting on April 24, 2015, following

changes made to his PD to remove the references to HDP. IAF, Tab 2 at 48-49,

103. Accordingly, we conclude that the appellant also exhausted this claim with

OSC.

¶14 In sum, we modify the initial decision to clarify that the appellant exhausted

what has been identified as Disclosures 1 through 11 with OSC, as well as the

appellant’s claims that he was subjected to a reassignment under 5 U.S.C.

§ 2302(a)(2)(A)(iv), and a decision concerning pay or benefits under 5 U.S.C.

§ 2302(a)(2)(A)(ix) when his HDP supplement was discontinued. 

We agree that the appellant failed to meet his jurisdictional burden because he

failed to nonfrivolously allege that any of his alleged disclosures or activities was

a contributing factor in the agency’s decision to take either of the challenged

personnel actions. 

The January 24, 2015 discontinuation of the HDP supplement.

¶15 As the record reflects that all of the appellant’s alleged protected

disclosures and activities postdate both of his alleged retaliatory personnel action,

that is, the discontinuation of HDP and the appellant’s “reassignment” based on

the issuance of a new PD following the rescission of HDP, we conclude that he

8
failed to nonfrivolously allege that any of these disclosures or activities were a

contributing factor in these personnel actions. See El v. Department of

Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that because the subject

personnel action predated the disclosure, the disclosure could not have

contributed to the personnel action), aff’d per curiam, 663 F. App’x 921 (Fed.

Cir. 2016); Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007)

(same), aff’d, 278 F. App’x 1009 (Fed. Cir. 2008).

¶16 As previously noted, the appellant argues that the agency’s failure to

resume payment of HDP after January 23, 2015, gave rise to a separate retaliatory

personnel action “each and every payday” that he did not receive the HDP

supplement, and that therefore the administrative judge erred in finding he failed

to establish that his protected disclosures and activities were contributing factors

as to these subsequent events. PFR File, Tab 1 at 7. He argues, in other words,

that because each paycheck that did not include the HDP supplement was a part of

the agency’s “continuing reprisal,” each of the whistleblowing disclosures and

activities he exhausted with OSC preceded a subsequent denial of the HDP

supplement, and so he nonfrivolously alleged that he was subjected to personnel

actions in retaliation for his various disclosures and activities. Id. at 7-9. 

¶17 To support this argument, the appellant relies on decisions of the U.S. Court

of Claims discussing a “continuing claims” theory of liability. Id. at 8-9 (citing

Bevelheimer v. United States, 4 Cl. Ct. 558 (1984); Beebe v. United States,

640 F.2d 1283 (Ct. Cl. 1981), disagreed with on other grounds by Bodie v. City of

Columbia, S.C., 934 F.2d 561, 565 (4th Cir. 1991); and Friedman v. United

States, 310 F.2d 381, 384 (Ct. Cl. 1962)). In Bevelheimer, 4 Cl. Ct. at 559-62,

the U.S. Court of Claims considered whether a group of employees who alleged

that they completed job duties that entitled them to HDP during the period from

1966 through 1977 were barred by the court’s statute of limitations from later

bringing suit against the Department of the Army on their claim that they should

have received the HDP differential for that time period. As a part of addressing

9
this argument, the court considered defendants’ argument that under the relevant

statutory provision, “‘a separate cause of action accrued each payday’ when the

Army did not include in plaintiffs’ paychecks the hazardous duty pay they may

have earned in that pay period which they now seek.” Id. at 561. The court

ultimately agreed with the defendants that, for the purposes of that proceeding, a

separate cause of action against the Government accrued for the plaintiffs on each

day that the agency failed to include the HDP differential in the plaintiffs’

paychecks. Id.; see Beebe, 640 F.2d at 1292; Friedman, 310 F.2d at 384. As the

agency correctly observes on review, however, the matter the court was

addressing in Bevelheimer concerned whether a statute of limitations could apply

to bar suit for a prior claim of entitlement to HDP, and so the court’s embrace of

a “continuing claims” theory of liability in that case has no bearing on the

question posed in this case, i.e., whether, following an initial decision to

discontinue the HDP supplement, the withholding of the supplement from each

subsequent paycheck gives rise to separate covered personnel actions under

5 U.S.C. § 2302(a) for the purposes of an IRA appeal. 

¶18 Moreover, the Board has specifically considered and rejected such a

“continuing claims” theory of liability under similar circumstances. In Hamley v.

Department of the Interior, 122 M.S.P.R. 290 ¶ 3 (2015), the appellant filed an

IRA appeal alleging that the agency retaliated against him when it significantly

changed his work duties by not allowing him to assume the original duties of his

position at the end of his detail. OSC subsequently ordered the agency to return

the appellant to duty as corrective action, and the only issue before the Board was

the appellant’s entitlement to compensatory damages under the Whistleblower

Protection Enhancement Act of 2012 (WPEA). Id., ¶ 3. The challenged

personnel action was effected prior to the enactment of the WPEA, which altered

the availability of compensatory damages for such actions. Id., ¶¶ 3, 11.

Although the appellant acknowledged that he was not entitled to damages for the

period prior to the enactment of the WPEA, he argued that the significant change

10
in his duties was “not a discrete act but rather a ‘continuing action’” because the

change to his duties continued after the enactment of the WPEA. Id., ¶ 3. 

¶19 The Board rejected the appellant’s “continuing action” theory of liability,

noting that although the theory could be applied to toll the statute of limitations

for certain Title VII claims, under the WPEA, unlike under Title VII, there is no

deadline for an appellant to file an administrative complaint that is associated

with the date of the alleged retaliatory act and so the theory was not applicable.

Id., ¶ 8. The Board further concluded that even if it were to recognize that the

principles underling a continuing violation theory of liability could be applied

under the WPEA, the appellant still would not prevail because the administrative

judge properly determined that the significant change in the appellant’s duties

was, in fact, a discrete act. Id. ¶ 10. Importantly, the Boad noted that the

appellant’s “continued performance of the changed duties” after the effective date

of the WPEA was merely “a consequence of the June 30, 2012 discrete act,” and

determined that “these consequences do not constitute separate acts of reprisal or

render the June 30, 2012 violation ‘continuing’ under the WPEA.” Id.

¶20 As in Hamley, the single discrete act that constituted a covered personnel

action under 5 U.S.C. § 2302(a) in the instant case was the agency’s initial

decision on January 23, 2015, to suspend the payment of the HDP supplement to

Bomb Squad employees, effective January 24, 2015. IAF, Tab 2 at 103-04,

Tab 13 at 12 (acknowledging that the HDP premium payment was discontinued

effective January 24, 2015). The fact that the effects of that decision were

reflected in each subsequent paycheck thereafter is immaterial and does not

transform the agency’s single, discrete decision into a continuing personnel

action. Consequently, we find that, because all of the appellant’s alleged

protected disclosures and activities postdated the agency’s January 24, 2015

decision to discontinue the HDP supplement, the appellant failed to

nonfrivolously allege that any of his eleven disclosures was a contributing factor

11
in the agency’s decision to discontinue payment of the HDP supplement 5

 IAF,

Tab 21 at 9-39; see El, 123 M.S.P.R. 76, ¶ 10; Davis, 106 M.S.P.R. 560, ¶ 12. 

The April 24, 2015 “reassignment”

¶21 As previously noted, the administrative judge did not address the

appellant’s claim that he was “reassigned” when he received a memorandum on or

around April 24, 2015, informing him that his PD had been updated to remove

references to the HDP. IAF, Tab 2 at 48-49, 103-04. A “reassignment” is defined

at 5 C.F.R. § 210.102(b)(12) as “a change of an employee, while serving

continuously within the same agency, from one position to another without

promotion or demotion.” See Onasch v. Department of Transportation,

63 M.S.P.R. 158, 162 (1994). Here, it appears that the only result of the agency’s

April 24, 2015 action revising the appellant’s PD was to remove the references to

HDP. IAF, Tab 2 at 90-102 (appellant’s prior and updated PDs), 105-116

(evaluation statement for appellant’s prior PD). As the appellant’s title, job

series, location, or duties were apparently not altered as a result of the reissuance

of the PD, it does not appear he was subjected to a covered “reassignment” as a

result of the PD change. Id. at 90-102.

¶22 In any case, even assuming the appellant was subjected to a reassignment

for the purposes of 5 U.S.C. § 2302(a)(2)(A)(iv) based on the April 24, 2015

changes to his PD, the appellant alleged that the agency took this action in

retaliation for Disclosures 6, 8, 10, and 11, each of which postdated the agency’s

5

 To the extent the appellant is arguing on review that his March 2020 OPM

classification appeal was a protected activity under 5 U.S.C. § 2302(b)(9), we find that,

even assuming the appeal did constitute a protected activity under this subsection, it

likewise postdated both challenged personnel actions by nearly 5 years, and that

therefore the appellant also failed to meet his jurisdictional burden with respect to this

claim. PFR File, Tab 1 at 18-19, IAF, Tab 21 at 44-45. Although the appellant

mentions another “statutory classification appeal” filed in 2017, this is a reference to an

internal request to the Director of PFPA for a desk audit of his position description filed

on April 10, 2017. IAF, Tab 13 at 17, 107-08, Tab 21 at 40-44. That alleged

disclosure, too, postdated both of the allegedly retaliatory personnel actions and thus

likewise could not have contributed to the agency’s decision to take either action.

12
April 24, 2015 PD revisions. IAF, Tab 21 at 21-39. Thus, none of these

disclosures could have contributed to the agency’s decision to take the challenged

action. See El, 123 M.S.P.R. 76, ¶ 10; Davis, 106 M.S.P.R. 560, ¶ 12.

Accordingly, we further modify the initial decision to clarify that although the

appellant exhausted with OSC his claim that he was subjected to a reassignment

in retaliation for his various protected disclosures and activities, he nevertheless

failed to nonfrivolously allege that any of these disclosures or activities

contributed to the agency’s decision to take that action, and that therefore he also

failed to meet his jurisdictional burden as to that claim. 6 

¶23 For the foregoing reasons, we deny the appellant’s petition for review and

affirm the initial decision dismissing the appellant’s IRA appeal for lack of

jurisdiction, as modified herein to clarify the basis for the jurisdictional

determination.

NOTICE OF APPEAL RIGHTS7

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

Boards 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

6

 Because we have concluded that all of the appellant’s alleged disclosures and

activities postdated all of the alleged retaliatory personnel actions, we need not address

the administrative judge’s alternative finding that the appellant failed to nonfrivolously

allege that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) in connection

with his claims. ID at 6-10. 

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.

13
this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

14
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,

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

15
with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.8 The court of appeals must receive your petition for

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.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

16
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. 

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. 

17
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

18