UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONNY GRINA,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBERS

DE-0752-21-0174-I-1

DE-0752-20-0417-I-1

DATE: April 8, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

McRae Cleaveland, Esquire, and Ryan P. Aubrey, Esquire, and

R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

Beverly G. Schneider, Esquire, and Michael P. Talia, Fort Harrison, 

Montana, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The agency has filed a petition for review of the initial decision in Grina v.

Department of the Army, MSPB Docket No. DE-0752-20-0417-I-1 (0417 Appeal),

which reversed the appellant’s removal on constitutional due process grounds,

and the appellant has filed a petition for review of the initial decision in Grina v.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Department of the Army, MSPB Docket No. DE-0752-21-0174-I-1 (0174 Appeal),

which sustained a second removal action based on the same charge. We JOIN

these appeals. 5 C.F.R. § 1201.36(a)(2). For the reasons discussed below, we

DENY the appellant’s petition for review in the 0174 Appeal. We further

GRANT the agency’s petition for review in the 0417 Appeal, REVERSE the

initial decision, which reversed the first agency removal action, and instead

AFFIRM the appellant’s removal based on the first removal action. In light of

our findings here, we DISMISS the appellant’s second removal appeal as moot.

BACKGROUND

The appellant was a GS-12 Safety and Occupational Health Manager for

the Department of the Air Force. 0417 Appeal, Initial Appeal File (0417 IAF),

Tab 13 at 19. Although this is not a dual status position, the appellant also served

as a Chief Master Sergeant in the Montana Air National Guard. 0417 IAF,

Tab 20 at 26. On March 8, 2020, she submitted to a routine drug test in

connection with her military service. 0417 IAF, Tab 13 at 187. The appellant’s

sample was processed on March 24, 2020, and it tested positive for amphetamine.

Id. at 187-88. On March 25, 2020, the Air Force interviewed the appellant about

the matter, and she stated that she was “unaware of ingesting any medication that

would knowingly cause [her] to test positive on a urinalysis screening.” Id.

at 183-84. On May 18, 2020, the appellant submitted a second statement,

explaining that, on the mornings of March 7 and 8, 2020, she had taken

Adderall XR that had been prescribed to a family member. Id. at 185-86. She

explained the circumstances surrounding her ingestion of a non-prescribed

controlled substance and stated that she had not recalled doing so at the time she

made her March 25 statement. Id.

The appellant’s commander recommended that she be discharged from

military service, 0417 IAF, Tab 20 at 15, and on July 28, 2020, the Department of

the Air Force proposed to remove her from her civil service position as well,

2
based on a charge of using a controlled substance while off-duty without a

prescription, 0417 IAF, Tab 13 at 175-82. The appellant responded to the

proposal in writing, and on September 9, 2020, the deciding official issued a

decision removing her effective September 26, 2020. Id. at 19-52.

The appellant filed a Board appeal, contesting her removal chiefly on the

basis of the penalty. 0417 IAF, Tab 1 at 4, Tab 19 at 4, Tab 21 at 1. She did not

raise any affirmative defenses. After a hearing, the administrative judge issued

an initial decision reversing the removal on due process grounds. 0417 IAF,

Tab 29, Initial Decision (0417 ID). He found that the deciding official violated

the appellant’s due process rights by considering an aggravating penalty factor

without prior notice or an opportunity to respond. 0417 ID at 8-12. Specifically,

the deciding official disbelieved the appellant’s initial response to the positive

drug test result test, i.e., that she did not recall taking any medication that would

result in a positive test, and he considered this alleged untruthfulness as an

aggravating factor in his decision. 0417 IAF, Hearing Recording (HR), Track 1

at 50:00 (testimony of the deciding official). Having reversed the removal on due

process grounds, the administrative judge did not reach the merits of the appeal.

0417 ID at 2, 12. The administrative judge ordered the agency to provide interim

relief. 0417 ID at 13-14.

On February 19, 2021, the agency filed a petition for review, disputing the

administrative judge’s due process analysis. 0417 Petition for Review (0417

PFR) File, Tab 1. The appellant has responded to the petition for review. 0417

PFR File, Tab 5. The agency reinstated the appellant to her position and certified

its compliance with the interim relief order. Id. at 17.

On February 20, 2021, the agency proposed the appellant’s removal for a

second time based on the same underlying charge of off-duty use of a controlled

substance without a prescription. 0174 Appeal, Initial Appeal File (0174 IAF),

Tab 12 at 79-86. The appellant provided a written response to the proposal on

March 4, 2021, and on April 9, 2021, the deciding official issued a decision

3
removing her effective April 11, 2021. Id. at 21-50. The appellant filed a Board

appeal challenging the second removal action. 0174 IAF, Tab 1 at 1-6. She did

not raise any affirmative defenses. 0174 IAF, Tab 11 at 4. 

After the appellant withdrew her hearing request, 0174 IAF, Tab 21 at 1,

and the parties submitted their closing briefs, 0174 IAF, Tabs 22-25, the

administrative judge issued an initial decision sustaining the removal, 0174 IAF,

Tab 27, Initial Decision (0174 ID) at 2, 10. The administrative judge sustained

the charge based on the appellant’s admission that she used Adderall XR without

a prescription while off duty. 0174 ID at 4. He further found that the agency

established a nexus between the appellant’s misconduct and the efficiency of the

service, and that the removal penalty was reasonable. 0174 ID at 4-10. 

The appellant has filed a petition for review of that decision. 0174 Appeal,

Petition for Review (0174 PFR) File, Tab 3. The agency has responded to the

petition for review, and the appellant has filed a reply to the agency’s response.

0174 PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

We join these two appeals.

Joinder of two or more appeals filed by the same appellant may be

appropriate when joinder would expedite processing of the appeals and not

adversely affect the interests of the parties. Boechler v. Department of the

Interior, 109 M.S.P.R. 542, ¶ 14 (2008), aff’d per curiam, 328 F. App’x 660 (Fed.

Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We join these appeals on review

because the facts are interrelated and joinder will expedite processing without

adversely affecting the interests of the parties. See Seth-Morris v. Office of

Personnel Management, 94 M.S.P.R. 166, 166 n.1 (2003).

4
First Removal Appeal, Appeal 0417.

The agency did not violate the appellant’s right to due process.

On petition for review in the first Board appeal, the agency argues that the

administrative judge should not have found a due process violation under Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999),

because the deciding official did not consider any penalty factors of which the

appellant was not specifically notified. 0417 PFR File, Tab 1 at 8-11. For the

reasons that follow, we agree.

The essential requirements of due process are notice and an opportunity to

respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).

In the context of an adverse action under 5 U.S.C. chapter 75, this entails advance

notice of the reasons for the proposed adverse action, an explanation of the

agency’s evidence, and a meaningful opportunity to present reasons why the

agency should not take the action. Massey v. Department of the Army,

120 M.S.P.R. 226, ¶ 4 (2013). These requirements of notice and an opportunity

to respond apply equally to the charges against the employee and to the level of

penalty being imposed. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80

(Fed. Cir. 2011). When an agency intends to rely on aggravating factors as the

basis for the imposition of a penalty, such factors should be included in the

advance notice of adverse action so that the employee will have a fair opportunity

to respond to those factors before the agency’s deciding official. Lopes v.

Department of the Navy, 116 M.S.P.R. 470, ¶ 5 (2011). In this case, the

administrative judge found no indication that the proposing official intended for

allegations of untruthfulness to factor into the removal action. 0417 ID at 8. 

The administrative judge further found that there was no indication that the

appellant understood the proposal to be making any such allegation. Id. Thus, he

determined that the deciding official “privately concluded” that the appellant’s

statement was untruthful and factored this conclusion against her in his removal

decision without any prior notice to the appellant that this would be an issue.

5
0417 ID at 9-10. Applying the factors set forth in Stone, 179 F.3d at 1377, the

administrative judge concluded that the deciding official’s consideration of this

matter was so substantial and so likely to cause prejudice that no employee could

fairly be required to be subjected to a deprivation of property under such

circumstances. 0417 ID at 11-12.

However, we disagree that the agency failed to inform the appellant that the

facial inconsistency between her March 25 and May 18, 2020 statements could be

an issue in its decision. 0174 ID at 8. The first page of the proposal notice states

four sets of facts, labeled “a” through “d” in support of the agency’s charge of

off-duty nonprescription use of a controlled substance. 0417 IAF, Tab 13 at 75.

Under “c,” the proposing official stated:

On or about 25 March 2020, you provided a sworn statement that you

were unaware of ingesting anything that would cause a positive

urinalysis test. On or about 18 May 2020, you provided a sworn

statement that you admitted to using Adderall XR on 7 and 8 March

2020; you admitted you did not have a prescription for Adderall XR.

Id.

Mention of the May 18 statement certainly goes to support the charge, but

that is not all. The agency also noted the March 25 statement in which the

appellant pled ignorance of the reason for the positive test results. It is difficult

to imagine any reason that the agency would have mentioned the March 25

statement in its proposal notice except to point out that it was inconsistent with

the appellant’s later admission of misconduct. The only alternative would be to

interpret the agency’s mention of the March 25 statement as entirely superfluous,

but such an interpretation would be both against the rules of construction and

common sense, especially considering its prominent placement in the notice of

proposed removal. See Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 19

(2002) (determining that when an agency stated, following its narrative of the

factual basis for the charge, that the appellant violated the Privacy Act and a

regulation, those alleged violations were part of the charge). We therefore find

6
that the appellant was on notice that her inconsistent statements might be a factor

in the agency’s decision.

Although the appellant’s response to the notice of proposed removal does

not address the matter, her response to the parallel military discharge proceedings

does. 0417 IAF, Tab 20 at 15-18. During those proceedings, the appellant

explained the discrepancy between her two statements, indicating that she was

caught off-guard by the positive test results and did not recall until after she made

her initial statement that she had taken two nonprescription doses of Adderall XR

around the time in question. Id. at 15. We acknowledge that these parallel

proceedings were distinct from one another. However, the appellant’s May 22,

2020 response to the notice of proposed discharge shows that she must have been

aware of the significance of the apparently contradictory statements as they

appeared in the July 28, 2020 notice of proposed removal. 

For the foregoing reasons, we conclude that the deciding official neither

considered information that was not included in the proposal notice nor drew any

conclusions that might represent a departure from the reasons stated in the

proposal itself, and so the agency did not commit a violation of due process. For

the same reason, we also find that the agency committed no procedural error. See

Ward, 634 F.3d at 1281-82. 

Because the administrative judge reversed the removal on due process

grounds without reaching the merits of the appeal, a remand for further

adjudication would ordinarily be required. Stone, 179 F.3d at 1377-78; Ward,

634 F.3d at 1279-80. However, for the reasons discussed below, we find that the

principles of adjudicatory efficiency provide sufficient basis for the Board to

decide the merits of this appeal on petition for review.

Second Removal Action, Appeal 0174.

As previously noted, after the administrative judge reversed the first

removal action on constitutional due process grounds, the agency proposed the

appellant’s removal a second time. 0174 IAF, Tab 12 at 79-86. The second

7
removal action contained the same single charge of off-duty use of a controlled

substance without a prescription, with the same single specification. Id. at 79;

see 0417 IAF, Tab 13 at 175. Additionally, the proposing and deciding officials

in the second removal action were the same as in the first removal. 0174 IAF,

Tab 12 at 25, 86; 0417 IAF, Tab 13 at 24, 181. Although the appellant initially

indicated that she would once again raise a due process affirmative defense in the

second appeal, she ultimately declined to do so and did not raise any other

affirmative defenses. 0174 IAF, Tab 11 at 4. Finally, a full hearing on the merits

was held in the first appeal with testimony from all of the relevant witnesses, and

because the second appeal was based on the written record pursuant to the

appellant’s request, there was no additional testimony in the second appeal.

0417 IAF, Tab 26; 0174 IAF, Tab 21 at 1.

Thus, the only substantive difference between the first and second removal

actions was that the second proposal notice was more explicit about the inference

that the proposing official drew from the inconsistent statements. 0174 IAF,

Tab 12 at 29-30, 33, 79-82, 95, 97-98; 0417 IAF, Tab 13 at 175, HR, Track 1

at 50:30 (testimony of the deciding official) (acknowledging that he believed the

appellant’s statement denying awareness of why she tested positive for

amphetamines was false); HR Track 3 at 29:30 (testimony of the proposing

official) (same).

As set forth in Ward and Stone, when an adverse action is reversed on due

process grounds, an agency may take a second adverse action based on the same

misconduct if it provides the appellant a new and “constitutionally correct

removal procedure.” Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; see Litton

v. Department of Justice, 118 M.S.P.R. 626, ¶ 12 (2012) (noting that it is not

unusual or wrongful for an agency to begin anew an adverse action based on

charges that were previously brought when the initial action was invalidated on

procedural grounds) (citing Steele v. General Services Administration, 6 M.S.P.R.

368, 372 (1981)); Shamblen v. U.S. Postal Service, 45 M.S.P.R. 620, 624 (1990)

8
(noting that when the adverse action in the earlier proceeding was invalidated on

procedural grounds and the administrative judge did not reach the merits of the

charge, the agency is not precluded from renewing the adverse action based on

the charges brought in the earlier proceeding). 

Additionally, in Lopes v Department of the Navy, 119 M.S.P.R. 106, ¶¶ 2,

4-5, 8-111 (2012), the Board concluded that an administrative judge who held a

hearing on a prior removal based on the same charges may exercise his discretion

to incorporate any evidence from the record in the first appeal that he deems

appropriate into the record in the second appeal, while affording the parties with

the opportunity to further develop the record with relevant and nonduplicative

evidence. We find that situation analogous to the one here, in which we are

presented with virtually identical removal actions and must determine whether to

sustain them. Adjudicatory efficiency dictates that we determine whether we can

sustain the first removal before proceeding to consider the second. See Bean v.

U.S. Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013) (finding that when an appellant

files an appeal that raises claims raised in an earlier appeal after the initial

decision in the earlier appeal has been issued, but before the full Board has acted

on the appellant’s petition for review, it is appropriate to dismiss the subsequent

appeal on the grounds of adjudicatory efficiency). Based on the specific

circumstances present in this case, including that the same administrative judge

considered both appeals, all of the relevant evidence and argument is

substantively identical, the record was fully developed in the first Board appeal,

the appellant did not request a hearing in the second appeal, and there is no

dispute of material fact implicating witness credibility, we find it appropriate to

decide the merits of the 0417 appeal based on the record in the 0174 appeal.

9
We affirm the first removal action for the reasons discussed in the

0174 initial decision.

In the 0174 appeal, the administrative judge found that the agency proved

its charge and established nexus. 0174 ID at 4. The appellant does not contest

these findings, and for the reasons explained in the initial decision, we agree. 

The administrative judge also found that the deciding official considered

the relevant penalty factors and that the removal penalty was within the tolerable

limits of reasonableness. 0174 ID at 4-10. On review, the appellant argues that

the administrative judge failed to address the cases that she cited in her initial and

closing briefs. 0174 PFR File, Tab 3 at 7-18. She also contests the deciding

official’s application of the agency’s table of penalties. Id. at 7-11.

When, as here, the agency’s charges are sustained, the Board will review an

agency-imposed penalty only to determine if the agency considered all of the

relevant factors and exercised management discretion within tolerable limits of

reasonableness. Adam v. U.S. Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d

per curiam, 137 F. App’x 352 (Fed. Cir. 2005). In making that determination, the

Board must give due weight to the agency’s primary discretion in maintaining

employee discipline and efficiency, recognizing that the Board’s function is not

to displace management’s responsibility, but to ensure that management judgment

has been properly exercised. See, e.g., Brown v. Department of the Treasury,

91 M.S.P.R. 60, ¶ 7 (2002); Douglas v. Veterans Administration, 5 M.S.P.R. 280,

302 (1981). Thus, the Board will disturb the agency’s chosen penalty only if it

finds that the agency failed to weigh relevant factors or that the agency’s

judgment clearly exceeded the limits of reasonableness. Toth v. U.S. Postal

Service, 76 M.S.P.R. 36, 39 (1997).

In arriving at the removal penalty, the deciding official highlighted the

nature and seriousness of the appellant’s misconduct of using Adderall XR

without a prescription. He observed that, as a Safety and Occupational Health

Manager, the appellant’s drug use could have jeopardized the safety of the

10
120 personnel in her work unit and damaged military equipment. 0417 IAF,

Tab 13 at 26. He also considered other factors, such as the impact that the

appellant’s misconduct had on her job duties, the consistency of the removal

penalty with the closest analogous offense on the agency’s table of penalties, the

fact that she was on clear notice that use of illicit drugs was prohibited by

Government and agency policy, her limited potential for rehabilitation, and the

agency’s loss of trust in her judgment. 0417 IAF, Tab 13 at 26-31. 

The deciding official also considered mitigating factors, such as the

appellant’s lack of a disciplinary record, her lengthy service, her positive job

performance, and mitigating conditions related to recent illness and personal

stress, but he found that those factors did not overcome the severity of the

appellant’s offense.2 0417 IAF, Tab 13 at 30. After reviewing the deciding

official’s assessment of each Douglas factor, the administrative judge found that

the deciding official considered and properly weighed the Douglas factors and

2

 In the 0174 appeal, the administrative judge stated that the deciding official

considered Douglas factor 11 as “aggravating,” and that the appellant agreed with the

deciding official’s assessment. 0174 ID at 9. However, the Douglas factor worksheet

identifies this factor as “mitigating,” and the appellant argued in her response to the

proposal that this factor was mitigating, so this appears to be a misstatement.

0174 IAF, Tab 12 at 33, 70-71.

Further, although the proposing and deciding officials considered this factor mitigating

in the second removal action, they considered it aggravating in the first removal action,

with the difference being that the appellant was not apologetic in her response.

Compare 0174 IAF, Tab 12 at 33, 98, with 0417 IAF, Tab 13 at 30, 193. Nevertheless,

even assessing the reasonableness of the removal penalty based on the deciding

official’s analysis of Douglas factor 11 in the first removal action, the result is the

same. It is apparent that the agency would have removed the appellant regardless of

whether this factor was viewed as mitigating or aggravating, and we agree that the

removal is justified based on the severity of the appellant’s misconduct. See Batara v.

Department of the Navy, 123 M.S.P.R. 278, ¶¶ 2, 8 (2016) (finding removal was the

appropriate penalty for a shipyard employee charged with admitted frequent marijuana

use); Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 15 (2014) (holding that

removal is a reasonable penalty for drug use when the employee performs work that, if

the employee were impaired, could result in substantial danger to life and property,

notwithstanding other mitigating factors).

11
exercised his discretion within the tolerable limits of reasonableness. 0174 ID

at 6-9.

The appellant argues on review that the penalty of removal is unreasonable

because she engaged in her misconduct while off duty. 0174 PFR File, Tab 3

at 8-11; 0174 IAF, Tab 12 at 31. In support of her argument, the appellant cites

Culley v. Defense Logistics Agency, 60 M.S.P.R. 204 (1993). 0174 PFR File,

Tab 1 at 8-11. We have considered the appellant’s arguments, but we do not

agree.

In Culley, 60 M.S.P.R. at 214-15, the deciding official erred by basing her

penalty decision on the charge of theft, when the appellant was actually charged

with unauthorized possession of Government property. No such error occurred

here. Rather, the deciding official listed the charge of being under the influence

on-duty as the “most closely related charge [to the appellant’s charged

misconduct] in the table of penalties.” 0174 IAF, Tab 12 at 31. However, in

doing so, he explicitly recognized that appellant was charged with “off-duty

misconduct” and acknowledged that she had not reported to her civilian position

while under the influence.3 0174 IAF, Tab 12 at 31. The deciding official

ultimately concluded that the table of penalties was a “neutral” penalty factor, a

conclusion with which the administrative judge agreed. Id.; 0174 ID at 8. 

The appellant also disputes the deciding official’s assessment of Douglas

factor 5, which concerns the effect of the offense upon her supervisors’

confidence in her ability to perform her assigned duties. 0174 PFR File, Tab 3

at 12-16. According to the appellant, the proposing official had not lost trust and

3

 An agency may violate an employee’s right to due process if she is not provided with

the opportunity to respond to the agency’s consideration of the recommended penalty

for a charge other than the one set forth in the notice itself. Jenkins v. Environmental

Protection Agency, 118 M.S.P.R. 161, ¶ 12 (2012). However, as noted above, the

appellant elected not to pursue a due process claim. In any event, the agency notified

the appellant of how it viewed her offense under its table of penalties in both of its

proposed removals, and she specifically responded to this issue in the second removal

action. 0417 IAF, Tab 13 at 177, 192; 0174 IAF, Tab 12 at 31, 64, 68, 81. Therefore,

she had notice of, and an opportunity to respond to, this information.

12
confidence in her ability to perform her job, and the deciding official’s loss of

confidence was based on her alleged lack of candor rather than on the underlying

offense. Therefore, she argues, these factors should not have weighed against

her. Id. at 13-16. 

An agency’s claim that supervisors have lost trust and confidence in an

appellant must be supported by evidence and cannot be based solely on a mere

conclusory statement. Jefferson v. U.S. Postal Service, 73 M.S.P.R. 376, 384

(1997). In this case, the deciding official specifically explained that he lost

confidence in the appellant because the agency relies on the Safety and

Occupational Health Manager to use good judgment and decision-making ability

to ensure that safety standards are met, but the appellant demonstrated poor

judgment by using a controlled substance without a prescription. 0417 IAF,

Tab 13 at 28. We agree with the administrative judge that the record supports the

agency’s claim of lost trust and confidence, 0174 ID at 7. 

Finally, the appellant argues that the Board’s decision in Kruger v.

Department of Justice, 32 M.S.P.R. 71 (1987), requires mitigation of the removal

penalty. 0174 PFR, Tab 3 at 16-18. The three appellants in Kruger each

immediately admitted to smoking marijuana while off duty when interviewed by

agency investigators. Kruger, 32 M.S.P.R. at 73. Based on this and other factors,

the Board mitigated their removals to 60-day suspensions. Id. at 76-77. In

contrast, the appellant here initially denied any knowledge concerning why she

tested positive for amphetamine, and only later made a second statement

acknowledging that the positive screen was due to her use of medication

prescribed to a family member for attention deficit hyperactivity disorder.

0417 IAF, Tab 13 at 183-88. Accordingly, she did not demonstrate the same

potential for rehabilitation as the appellants in Kruger. 

Because we find that the agency afforded the appellant due process in

connection with the 0417 removal, we grant the agency’s petition for review and

reverse the 0417 initial decision. Because a hearing was held in that appeal and

13
the record is complete, we sustain the appellant’s first removal, effective

September 26, 2020, on the merits without remanding to the administrative judge.

0417 IAF, Tab 13 at 19. 

Because we affirm the appellant’s first removal, there is no effective relief

we can grant the parties regarding the appellant’s second removal, and it is now

moot. See Milner v. U.S. Postal Service, 118 M.S.P.R. 600, ¶ 4 (2012)

(explaining that an issue is moot when there is no effective relief that the Board

can provide); Najjum v. General Services Administration, 27 M.S.P.R. 87, 88-89

(1985) (determining that an appellant’s retirement retroactive to a date prior to

his removal rendered his removal appeal moot). Therefore, we dismiss the

0174 Appeal as moot.

NOTICE OF APPEAL RIGHTS4

The initial decisions, as supplemented by this Final Order, constitute the

Board’s final decisions on these matters. 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.

4

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

14
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

15
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. 

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

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

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

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

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B). 

5

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

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

132 Stat. 1510. 

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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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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