UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LESLIE K. HARRACH,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

DE-1221-12-0491-W-2

DATE: September 13, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Leslie K. Harrach, Phoenix, Arizona, pro se.

Cynthia B. De Nardi, Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

denied her request for corrective action. Generally, we grant petitions such as 

this one only in the following circumstances: the initial decision contains 

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

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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 by this Final Order to (1) vacate the administrative judge’s 

credibility determinations made after a hearing the appellant did not request, 

(2) find that the appellant established that her four disclosures were protected and 

were contributing factors in her termination, and (3) find a slight retaliatory 

motive on the part of relevant agency officials, we AFFIRM the initial decision. 

BACKGROUND

¶2 Effective August 29, 2010, the agency appointed the appellant to an 

excepted-service Attorney-Advisor position with the agency’s Office of Disability 

Adjudication and Review in Phoenix, Arizona. Harrach v. Social Security 

Administration, MSPB Docket No. DE-1221-12-0491-W-1, Initial Appeal File 

(IAF), Tab 8 at 115. The appointment was subject to a 2-year trial period. Id. At 

all times relevant to this appeal, the appellant’s first-line supervisor was M.H., 

Attorney Adjudicator and Group Supervisor, her second-line supervisor was 

L.W., Hearing Office Director, and her third-line supervisor was P.F., Hearing 

Office Chief Administrative Law Judge (CALJ). Harrach v. Social Security 

Administration, MSPB Docket No. DE-1221-12-491-W-2, Appeal File (W-2 AF), 

Tab 45 at 40-41. 
3

¶3 On August 17, 2012, CALJ P.F. issued the appellant a notice of termination. 

IAF, Tab 8 at 53-54. In the notice, the agency provided the following narrative in 

support of the termination: 

Despite counseling and opportunity to improve, you have failed to 

properly demonstrate courtesy and consideration when interacting 

with coworkers, including management, and you have not conducted 

yourself with propriety. 

On October 19, 2010 and October 5, 2011, you were advised that all 

employees must adhere to the Standards of Conduct for Employees 

of the Executive Branch as explained in the Annual Personnel 

Reminders. Specifically, the Annual Personnel Reminders, Part 1.6, 

states that you “are responsible for observing the requirements of 

courtesy and consideration while dealing with coworkers or serving 

the public and must conduct yourself with propriety.” On May 24, 

2012 you were counseled by your first-line supervisor after you 

made discourteous remarks. For example, you told [M.H.], your 

supervisor, that she was “stupid”, and “incompetent.” During the 

counseling session with her, you engaged in further misconduct by 

making additional discourteous remarks. You indicated that [M.H.]

was not a legal professional and that her professional license was “a 

fake.” You also frequently interrupted [M.H.] during the meeting 

and used profanity, among other inappropriate conduct. After the 

counseling session, your supervisor e-mailed you a summary of the 

discussion. This e-mail also reminded you about the requirement 

that you treat others with courtesy and respect, as set forth in the 

Annual Personnel Reminders, Part 1.6. Subsequently, you continued 

to interact with others, including management, in an aggressive and 

inappropriate manner. 

Id. The appellant’s termination was effective August 27, 2012. Id. at 52. 

¶4 On September 4, 2012, the appellant timely filed an individual right of 

action (IRA) appeal in which she alleged that the agency terminated her in 

retaliation for her protected whistleblower disclosures. IAF, Tab 1 at 3-5, 11-16. 

The appellant indicated on her initial appeal form that she requested a hearing. 

Id. at 2. On January 23, 2013, the administrative judge dismissed the appeal 

without prejudice pending a Board determination regarding the retroactive effect

of the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 

126 Stat. 1465 (WPEA). IAF, Tab 14, Initial Decision. On July 15, 2013, the
4

appeal was refiled sua sponte following the Board’s decision in Day v. 

Department of Homeland Security, 119 M.S.P.R. 589 (2013). W-2 AF, Tab 1. 

¶5 The administrative judge subsequently issued a jurisdictional order 

providing the parties with their respective burdens of proof in an IRA appeal. 

W-2 AF, Tab 8. After the parties had an opportunity to respond to the order, the 

administrative judge found that the Board has jurisdiction over the appellant’s 

IRA appeal. W-2 AF, Tab 40. Specifically, she found that the appellant had 

exhausted her administrative remedies before the Office of Special Counsel 

(OSC) by first raising her concerns in an OSC complaint dated August 6, 2012, as 

amended on August 31, 2012. Id. at 1. In addition, she found that the appellant 

nonfrivolously alleged that she was terminated during her trial period in 

retaliation for having made protected whistleblower disclosures. Id. at 2. The 

administrative judge also found that a separation from Federal service constituted 

a personnel action under 5 U.S.C. § 2302(a)(2)(A). Id.

¶6 Having found jurisdiction over the appeal, the administrative judge granted 

a hearing on the merits of the appeal. W-2 AF, Tabs 20, 40. The appellant 

subsequently filed a motion for a decision on the written record. W-2 AF, 

Tab 42. Thereafter, the administrative judge issued an order cancelling the 

hearing and providing the parties with the opportunity to submit closing evidence 

and argument no later than January 31, 2014. W-2 AF, Tab 44. Following the 

submission of closing evidence and argument by the parties, the administrative 

judge ordered a hearing on her own initiative, relying on 5 C.F.R. § 1201.41(b)(5)

for doing so. W-2 AF, Tab 57. On May 19-21, 2014, she held an in-person 

hearing. W-2 AF, Tab 69. 

¶7 On May 25, 2016, the administrative judge issued an initial decision 

denying the appellant’s request for corrective action. W-2 AF, Tab 76, Initial 

Decision (W-2 ID). She first found that the appellant established a prima facie 

case of whistleblower reprisal. Id. at 18-19. In that regard, she found that the 

appellant raised the following disclosures in both her OSC complaint and her 
5

Board appeal: (1) a May 2012 meeting with CALJ P.F. during which the 

appellant disclosed fraud and discrimination by her supervisor M.H. concerning 

administrative law judge (ALJ) M.T. and attorney M.C.; (2) a June 2012 affidavit 

submitted to the Equal Employment Opportunity Commission (EEOC) by the 

appellant disclosing “[M.H.]’s fraud, coercion, abuse of power and 

discrimination”; (3) her July 25, 2012 letter to the EEOC disclosing that the 

agency violated the Privacy Act when it improperly accessed her official 

personnel records; and (4) her August 3, 2012 letter to the EEOC in which she 

disclosed “witness tampering activities of [M.H.], [CALJ P.F.], and [D.T.] that 

occurred on August 2, 2012.” W-2 ID at 3; W-2 AF, Tab 40 at 2. Based on 

extensive credibility determinations, the administrative judge found that the 

meeting between the appellant and CALJ P.F. described in disclosure (1) did not 

occur, W-2 ID at 12-13, 19, and that the events described in disclosure (2) did not 

happen, W-2 ID at 6-8, 15, 19. She found, however, that it was undisputed that 

the appellant’s disclosures to the EEOC in July and August 2012 were in fact 

made and that disclosures (3) and (4) evidenced a violation of law and therefore 

constituted protected disclosures under 5 U.S.C. § 2302(b)(8).

2

 W-2 ID at 19. 

 

2

To the extent the appellant may be asking the Board to order corrective action based 

on alleged reprisal for engaging in equal employment opportunity (EEO) activity, we 

(and the administrative judge) did not address her concerns in that context. The 

disclosures and personnel action at issue in this case happened before the enactment of 

the WPEA. The WPEA did not apply retroactively to disclosures or activities that 

occurred before its December 27, 2012 effective date. The WPEA expanded the IRA 

appeal rights afforded under 5 U.S.C. § 1221(a) to include requests for corrective action 

based not only on the prohibited personnel practices discussed in section 2302(b)(8) but 

also for those discussed in sections 2302(b)(9)(A)(i), (B), (C), and (D). See WPEA, 

§ 101(b)(1), 126 Stat. at 1465-66; see also 5 U.S.C. § 1214(a)(3). Most pertinent here, 

under the WPEA, an employee has the right under certain circumstances to seek 

corrective action when she suffers reprisal due to the filing of an EEO complaint. See

5 U.S.C. § 2302(b)(9)(A)(i) (prohibiting an agency from retaliating against an employee 

for “the exercise of any appeal, complaint, or grievance right” related to 

whistleblowing). However, the WPEA’s predecessor statute, the Whistleblower 

Protection Act (WPA), did not authorize the Board to order corrective action in cases 

involving alleged reprisal for engaging in EEO activity. See Spruill v. Merit Systems 

Protection Board, 978 F.2d 679, 690 (Fed. Cir. 1992) (recognizing that the WPA did 
6

Furthermore, the administrative judge found that the appellant established by 

preponderant evidence that her protected disclosures were a contributing factor in 

her termination. W-2 ID at 20-22. 

¶8 Having found that the appellant established a prima facie case of 

whistleblower retaliation as to disclosures (3) and (4), the administrative judge 

considered whether the agency established by clear and convincing evidence that 

it would have terminated the appellant in the absence of her protected disclosures. 

W-2 ID at 22-27. She found the agency met its burden of proof and, therefore, 

she denied the appellant’s request for corrective action. W-2 ID at 27-28. 

¶9 The appellant timely filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response, PFR File, Tab 6, and the appellant 

has filed a reply to the agency’s response, PFR File, Tab 7. The appellant raises 

the following arguments on review: (1) the administrative judge’s credibility 

findings should be overturned because the administrative judge failed to properly 

weigh and consider evidence and misapplied Hillen;

3

(2) the administrative judge 

improperly excluded evidence and testimony during the hearing; (3) the 

administrative judge erred in convening the hearing following the appellant’s 

motion for a decision on the written record; (4) the administrative judge erred in 

finding that two of her alleged disclosures were not protected; (5) the 

 

not provide individuals with a right to bring an IRA appeal based on claims of reprisal 

for making disclosures protected under section 2302(b)(9)). As a result, neither we nor 

the administrative judge analyzed the appellant’s EEO activity as a possible 

section 2302(b)(9) retaliation claim under the WPEA. 

3

To resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state which 

version she believes, and explain in detail why she found the chosen version more 

credible, considering such factors as: (1) the witness’s opportunity and capacity to 

observe the event or action question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 

458 (1987). 
7

administrative judge failed to draw an adverse inference against the agency for 

changing its “story . . . [once] it realized that the knowledge/timing test and 

evidence went against them”; (6) the administrative judge erred in finding that the 

agency met its burden of proof by clear and convincing evidence; (7) the 

administrative judge committed a procedural error by delaying the issuance of the 

initial decision; and (8) the administrative judge did not consider that the agency 

violated the notice requirement in the appellant’s union contract by failing to 

provide her with sufficient notice of her termination. PFR File, Tabs 1, 7.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge should have decided the appeal based on the written 

record. 

¶10 As noted above, the appellant contends on review that the administrative 

judge erred in convening a hearing over her motion for a decision on the written 

record. PFR File, Tab 1 at 13. Under 5 C.F.R. § 1201.41(b)(5), an administrative 

judge has the authority to order a hearing on her own initiative if the 

administrative judge determines that a hearing is necessary to resolve important 

issues of credibility; ensure that the record on significant issues is fully 

developed; or to otherwise ensure a fair and just adjudication of the case. An 

administrative judge’s authority to order a hearing, however, must be viewed in 

light of the Congressional purpose underlying the right to a hearing. Dodd v. 

Department of the Interior, 48 M.S.P.R. 582, 584 (1991). Our reviewing court 

has stated that the hearing right exists for the benefit of the appellant and that “a 

hearing with live witnesses should never be forced upon an employee who has 

forfeited or abandoned [her] right to a hearing.” Callahan v. Department of the 

Navy, 748 F.2d 1556, 1559 (Fed. Cir. 1984) (holding that when an appellant 

failed to appear for a hearing without a valid excuse, it was error for the 

administrative judge to continue the hearing without the appellant, vacating the 

Board’s decision, and remanding the case for reconsideration based “on the 
8

record developed by the agency during its investigation”); see Dodd, 48 M.S.P.R. 

at 584. 

¶11 While we are sympathetic as to why the administrative judge, as the trier of 

fact and relying on the language of section 1201.41(b)(5), may have wished to 

develop the record on the issues before her in this whistleblower case, we find 

that the administrative judge should have granted the appellant’s request for a 

decision on the written record and determined whether to grant or deny the 

appellant’s request for corrective action without relying on the hearing testimony. 

See Grimes v. General Services Administration, 84 M.S.P.R. 244, ¶ 8 (1999); 

Kirkpatrick v. Department of the Interior, 49 M.S.P.R. 316, 318 (1991); Dodd, 

48 M.S.P.R. at 584-85. Therefore, under the circumstances of this case, the 

administrative judge’s credibility findings are vacated. However, because the 

written record is complete, we will rule on the merits of the appeal without 

remanding this appeal to the field office. See Grimes, 84 M.S.P.R. 244, ¶ 9 

(declining to remand the appeal to the regional office when the administrative 

judge erred in considering the hearing testimony in reaching her decision but the 

record was complete). Because we reach our decision in this case based on the 

written record, as the appellant sought below, we will not consider the appellant’s 

challenges to the administrative judge’s credibility determinations, nor will we 

consider her argument that the administrative judge improperly excluded evidence 

and argument during the hearing. 

¶12 In deciding this case on the written record, we have considered, among 

other things, the statements and affidavits submitted by the parties. These 

out-of-court statements and affidavits constitute hearsay. Hearsay evidence is 

admissible in Board proceedings, and the assessment of the probative value of 

hearsay evidence necessarily depends on the circumstances of each case. 

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83–87 (1981). The 

following factors may be included in considering the probative value of the 

hearsay evidence: (1) the availability of persons with firsthand knowledge to 
9

testify at the hearing; (2) whether the statements of the out-of-court declarants 

were signed or in affidavit form and whether anyone witnessed the signing; 

(3) the agency’s explanation for failing to obtain signed or sworn statements; 

(4) whether the declarants were disinterested witnesses to the events and whether 

the statements were routinely made; (5) the consistency of declarants’ accounts 

with other information in the case, internal consistency, and their consistency 

with each other; (6) whether corroboration for statements can otherwise be found 

in the agency record; (7) the absence of contradictory evidence; and (8) the 

credibility of the declarants when they made the statement attributed to them. Id.

at 87. We have considered these factors in assessing whether the parties have met 

their respective burdens of proof. 

The appellant established a prima facie case of whistleblower retaliation. 

¶13 After establishing the Board’s jurisdiction in an IRA appeal, as the 

administrative judge found the appellant did in this case,

4

an appellant must 

establish a prima facie case of whistleblower retaliation by proving by 

preponderant evidence that she made a protected disclosure that was a 

contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1); 

Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the 

appellant makes out a prima facie case, then the agency is given an opportunity to 

prove by clear and convincing evidence that it would have taken the same 

personnel action in the absence of the protected disclosure. 5 U.S.C. 

§ 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. Preponderant evidence is that 

degree of relevant evidence that a reasonable person, considering the record as a 

whole, would accept as sufficient to find that a contested fact is more likely true 

than untrue. 5 C.F.R. § 1201.4(q). Clear and convincing evidence is that 

measure or degree of proof that produces in the mind of the trier of fact a firm 

 

4

The parties do not challenge the administrative judge’s jurisdictional finding on 

review. Because the agency does not challenge that finding, we discern no basis for 

disturbing it. 
10

belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). It is a 

higher standard than preponderant evidence. McCarthy v. International Boundary 

& Water Commission, 116 M.S.P.R. 594, ¶ 43 (2011), aff’d, 497 F. App’x 4 (Fed.

Cir. 2012). 

The appellant established by preponderant evidence that she made 

protected disclosures. 

¶14 A protected disclosure is a disclosure of information that an appellant 

reasonably believes evidences 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. 5 U.S.C. § 2302(b)(8)(A); 

Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable 

belief exists if a disinterested observer with knowledge of the essential facts 

known to and readily ascertainable by the appellant could reasonably conclude 

that the actions evidence one of the categories of wrongdoing listed in 

section 2302(b)(8)(A). Id.; see Lachance v. White, 174 F.3d 1378, 1381 (Fed.

Cir. 1999). To establish that she made a protected disclosure, the appellant need 

not prove that the matter disclosed actually established one of the types of 

wrongdoing listed under section 2302(b)(8)(A); rather, she must show that the 

matter disclosed was one that a reasonable person in her position could have 

believed evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). 

Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). 

Moreover, the Board does not require an appellant to correctly label the category 

of wrongdoing under 5 U.S.C. § 2302(b)(8). Tullis v. Department of the Navy, 

117 M.S.P.R. 236, ¶ 7 (2012).

¶15 As previously noted, the administrative judge found that the appellant 

raised the following disclosures: (1) a May 2012 meeting with CALJ P.F. where 

the appellant claims she disclosed fraud and discrimination by her supervisor 

M.H. regarding ALJ M.T. and attorney M.C.; (2) a June 2012 affidavit submitted 

to the EEOC disclosing “[M.H.]’s fraud, coercion, abuse of power and 
11

discrimination”; (3) a July 25, 2012 letter to the EEOC disclosing Privacy Act

violations; and (4) an August 3, 2012 letter to the EEOC in which the appellant 

disclosed “witness tampering activities of [M.H.], [CALJ P.F.], and [D.T.] that 

occurred on August 2, 2012.” W-2 ID at 3; W-2 AF, Tab 40 at 2. We discern no 

basis for disturbing the administrative judge’s findings that the appellant’s 

disclosures to the EEOC in July and August 2012 occurred. In particular, the 

record reflects that, by letter dated July 25, 2012, the appellant alleged to the 

EEOC that the agency violated the Privacy Act by M.H. disclosing her personal 

information to the agency’s EEOC counsel and by the agency’s EEOC counsel 

disclosing the information to another employee.5 IAF, Tab 5 at 44-48. In 

addition, on August 3, 2012, the appellant alleged to the EEOC that the agency 

engaged in witness tampering when it asked her to review the transcript of a 

deposition she had given in another employee’s EEOC case. Id. at 59-61. She

alleged that M.H. raised her voice and repeatedly told her to sign the deposition

and that the appellant felt under such duress that she was unable to properly 

review her deposition. Id. The appellant contended that M.H.’s actions violated 

Federal Rule of Civil Procedure 30(e) and 18 U.S.C § 1512.

6

 Id. 

¶16 We agree that a reasonable person in the appellant’s position could 

reasonably believe that these disclosures evidenced a violation of law. W-2 ID 

at 19. Thus, we affirm the administrative judge’s findings that disclosures (3) 

and (4) constitute protected disclosures under 5 U.S.C. § 2302(b)(8). See 

 

5

The Privacy Act, 5 U.S.C. § 552a, generally prohibits an agency from disclosing 

records without the prior written consent of the individual to whom the record pertains. 

See 5 U.S.C. § 552a(b). For purposes of section 552a, the term “record” means any 

grouping of information about an individual that is maintained by an agency and that 

contains, among other things, her name, or the identifying number, symbol, or other 

identifying particular assigned to the individual, such as a finger or voice print or 

photograph. See 5 U.S.C. § 552a(a)(4). 

6

Section 1512, titled “Tampering with a witness, victim, or an informant,” prohibits 

intimidating a person with intent to influence that person’s testimony or cause her to 

withhold testimony or a document from an official proceeding. See 5 U.S.C. § 1512(b). 

Federal Rule of Civil Procedure 30 relates to depositions by oral examination. 
12

Hupka v. Department of Defense, 74 M.S.P.R. 406, 410-11 (1997) (finding that 

the appellant’s disclosures regarding alleged Privacy Act violations were 

protected); see also Kalil v. Department of Agriculture, 96 M.S.P.R. 77, ¶ 16 

(2004) (determining that the appellant made a nonfrivolous allegation that his 

disclosure evidenced a violation of 18 U.S.C. § 1512). In making these

determinations, we do not find that the appellant actually established violations of 

a law, rule, or regulation, but rather that she met her burden of proving that the 

matter disclosed was one that a reasonable person in her position could believe 

evidenced such a violation. See Weber v. Department of the Army, 9 F.3d 97, 101 

(Fed. Cir. 1993) (finding that the Whistleblower Protection Act does not give the 

Board the right to review the substance of whistleblowing claims). 

¶17 The administrative judge relied on extensive credibility determinations in 

finding that disclosure (1) did not happen and that the events in disclosure (2) did

not occur. We have considered the documentary evidence supporting these 

disclosures and, as set forth below, we find that these disclosures are in fact 

protected. 

¶18 In her August 31, 2012 amended OSC complaint, the appellant stated the

following regarding disclosure (1): 

My direct supervisor, [M.H.], and . . . [CALJ P.F.] became aware in 

early May that I had revealed the discrimination and fraud by [M.H.] 

against [ALJ M.T.] and [M.C.]. [P.F.] chose to do nothing about it. 

[P.F.] and [M.H.] were aware that I would be serving as a witness in 

the case of another individual who had proceedings in front of the 

[EEOC] and would be submitting an affidavit that disclosed, among 

other things, the discrimination against [ALJ M.T.] and [M.C.] as 

well as the individual involved in the EEOC case. 

IAF, Tab 5 at 34. In a statement on jurisdiction made under penalty of perjury, 

the appellant contended that, during a conversation with CALJ P.F. in early 

May 2012, she disclosed that M.H. directed her to sign prewritten affidavits. 

W-2 AF, Tab 12 at 5-6, 9. According to the appellant, the affidavits stated that 
13

she witnessed ALJ M.T. verbally abusing and berating staff and that M.C. was 

verbally abusive to staff and did outside work during work hours. Id. 

¶19 The appellant raised similar allegations in her deposition testimony. 

Specifically, she stated under oath that, in early May 2013, she told CALJ P.F. 

that M.H. attempted to “coerce [her] into filing false affidavits” against ALJ M.T. 

and M.C. in an effort to get them removed. W-2 AF, Tab 36 at 31, 35-36. The 

appellant stated that M.H. wanted her to say that Judge M.T. verbally attacked 

and berated people and that M.C. used work time to do outside work. Id.

at 36-37. She further stated that she never witnessed the incidents M.H. asked her 

to detail in the affidavits. Id. at 36. 

¶20 Furthermore, the appellant reiterated her allegations that M.H. attempted to 

coerce her into signing “false affidavits” in a June 21, 2012 affidavit to the 

EEOC, which forms the basis for disclosure (2). W-2 AF, Tab 15 at 12-13. In 

her affidavit, she stated that M.H. attempted to coerce her to file false affidavits 

regarding an ALJ and a Senior Attorney Advisor. Id. at 13. 

¶21 In a declaration under penalty of perjury, CALJ P.F. stated that she did not 

recall having a conversation with the appellant in early May 2012 regarding 

M.H.’s alleged “attempted coercion.” W-2 AF, Tab 45 at 29-30. She also stated

that she did not recall the appellant “ever telling [her] anything about [M.H.] 

committing fraud or coercion.” Id. at 30. CALJ P.F. did state that the appellant 

asked her on May 30, 2012, whether she was aware that M.H. “wanted [the 

appellant] to keep an eye on [M.C.’s] activities at work.” The record also 

contains a declaration under penalty of perjury from M.H. In the declaration, 

M.H. did not refer to the affidavits described in disclosures (1) and (2). Id.

at 40-46. 

¶22 We find the appellant’s statements relating to M.H.’s request that the 

appellant sign false affidavits to have significant probative value. See 

Borninkhof, 5 M.S.P.R. at 87. As set forth above, these statements were made 

under penalty of perjury or in an affidavit form, and are internally consistent. 
14

Moreover, they are not directly contradicted by M.H.’s sworn declaration. 

Regarding the appellant’s statements that she told CALJ P.F. in early May that 

M.H. attempted to force her to commit perjury, we find this evidence entitled to 

less probative value because it is contradicted by CALJ P.F.’s sworn statement 

that such a conversation did not occur. However, the appellant’s statements on 

this issue are nonetheless entitled to some probative value because they were 

made under penalty of perjury and are internally consistent. Thus, upon applying 

the Borninkhof factors to the hearsay evidence submitted by the parties, and 

without the benefit of the administrative judge’s comprehensive credibility 

findings on these issues, we find it is more likely true than untrue that disclosures 

(1) and (2) occurred. 

¶23 Furthermore, we find that disclosure (1) constitutes a protected disclosure. 

The appellant characterized disclosure (1) as evidencing a violation of law, rule, 

or regulation—specifically, a violation of 18 U.S.C. § 1622. W-2 AF, Tab 12 

at 10. Section 1622, titled “Subornation of perjury,” states “[w]hoever procures 

another to commit any perjury is guilty of subornation of perjury, and shall be 

fined under this title or imprisoned not more than five years, or both.” She also 

alleged that her disclosure evidenced an abuse of authority on the part of M.H. 

Id. at 10-11. 

¶24 We find that a reasonable person in the appellant’s position could 

reasonably believe that her disclosure to CALJ P.F. evidenced a violation of law, 

rule, or regulation or an abuse of authority. At the very least, the appellant’s 

disclosure may evidence a violation of 18 U.S.C. § 1001, which prohibits making 

false statements in any matter within the jurisdiction of a Federal agency. See 

Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 13 (2000) (finding that the 

appellant made a nonfrivolous allegation that his disclosure evidenced a violation 

of 18 U.S.C. § 1001). An abuse of authority occurs when there is an arbitrary and 

capricious exercise of power by a Federal official or employee that adversely 

affects the rights of any person or results in personal gain or advantage to herself 
15

or to other preferred persons. Pulcini v. Social Security Administration, 

83 M.S.P.R. 685, ¶ 9 (1999), aff’d, 250 F.3d 758 (Fed. Cir. 2000). The Board has 

stated that there is no de minimis standard for abuse of authority. Id. We find 

that a disinterested observer could reasonably conclude that M.H.’s directing the 

appellant to sign false affidavits constituted an arbitrary and capricious exercise 

of power that adversely affected the rights of ALJ M.T. and those of M.C.

¶25 Concerning disclosure (2), the record reflects that, in an affidavit dated 

June 21, 2012, the appellant alleged to the EEOC that [M.H.] “attempted to 

coerce me to file false affidavits that would have been untruthful and not based 

on personal observation or knowledge” in order to get two other employees 

removed. W-2 AF, Tab 15 at 12-13. For the same reasons set forth above for

disclosure (1), we find that a reasonable person in the appellant’s position could 

reasonably believe that disclosure (2) evidenced a violation of law, rule, or 

regulation and an abuse of authority. We therefore find that disclosure (2) also 

constitutes a protected disclosure. Accordingly, we affirm the administrative 

judge’s findings that disclosures (3) and (4) are protected, but we modify the 

initial decision to find that disclosures (1) and (2) also are protected under 

5 U.S.C. § 2302(b)(8). 

The appellant established by preponderant evidence that her disclosures 

were a contributing factor in her termination. 

¶26 The term “contributing factor” means any disclosure that affects an 

agency’s decision to threaten, propose, take, or not take a personnel action with 

respect to the individual making the disclosure. Usharauli v. Department of 

Health & Human Services, 116 M.S.P.R. 383, ¶ 31 (2011). The most common 

way of proving the contributing factor element is the “knowledge/timing” test. 

Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 

353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the 

contributing factor element through evidence that the official taking the personnel 

action knew of the whistleblowing disclosure and took the personnel action 
16

within a period of time such that a reasonable person could conclude that the 

disclosure was a contributing factor in the personnel action. Id. To satisfy the 

test, the appellant need demonstrate only that the fact of, not necessarily the 

content of, the protected disclosure was one of the factors that tended to affect the 

personnel action in any way. Armstrong v. Department of Justice, 107 M.S.P.R. 

375, ¶ 19 (2007), overruled on other grounds by Edwards v. Department of 

Labor, 2022 MSPB 9. 

¶27 The administrative judge found that the appellant established that 

disclosures (3) and (4) were a contributing factor in her termination. She found 

that CALJ P.F., M.H., L.W., and other pertinent agency officials involved in the 

appellant’s termination disclaimed knowledge of the appellant’s protected 

disclosures. W-2 ID at 20. The administrative judge noted, however, that the 

appellant sent copies of her July and August disclosures to the attorney 

representing the agency before the EEOC and that he presumably received a copy 

of her June affidavit. Id. at 21. She found that, based on the circumstances, it 

was reasonable to infer that relevant agency officials knew the appellant was 

reporting concerns to the EEOC. Id. The administrative judge also noted that the 

appellant sent an email to L.W., copying CALJ P.F., which asserted that L.W. 

told the appellant, “[w]e can’t have you filing things with the court about 

management and our attorney. We can produce your employment records, we are 

your employer and there will be a request in the file.” Id.; IAF, Tab 5 at 53-54. 

The administrative judge found that this email suggests that L.W. had been told 

about the appellant’s July 25, 2012 letter expressing Privacy Act concerns. 

W-2 ID at 21. She thus found that the appellant met the knowledge/timing test as 

to disclosures (3) and (4). The agency does not challenge these findings on 

review, and we discern no basis for disturbing them.

7

 

 

7 As previously noted, the appellant contends on review that the administrative judge 

failed to draw an adverse inference against the agency for changing its “story . . . [once] 

it realized that the knowledge/timing test and evidence went against them.” PFR File, 
17

¶28 We find that the appellant also established that disclosures (1) and (2) were 

a contributing factor in her termination. The appellant established both 

components of the knowledge/timing test as to disclosure (1) because she made 

the disclosure to CALJ P.F., who issued her letter of termination, and because the 

May 2012 meeting during which she made the disclosure occurred months prior 

her August 27, 2012 termination. See Mudd v. Department of Veterans Affairs, 

120 M.S.P.R. 365, ¶ 10 (2013) (holding that a personnel action that occurred 

within 1 year of a protected disclosure satisfies the “timing” component of the 

knowledge/timing test). As previously noted, the administrative judge found that, 

based on the specific circumstances of this case, it was reasonable to infer that 

the relevant agency officials had knowledge that the appellant was reporting 

concerns to the EEOC. W-2 ID at 21. The agency does not dispute the 

administrative judge’s findings regarding contributing factor on review. In

addition, the appellant has met the timing component of the knowledge/timing 

test for disclosure (2). Thus, under the circumstances of this case, we find that 

the appellant has met the contributing factor requirement with regard to 

disclosure (2).

¶29 We therefore affirm the administrative judge’s findings that the appellant 

met the contributing factor requirement concerning disclosures (3) and (4), but 

modify the initial decision to find that the appellant also established contributing 

factor regarding disclosures (1) and (2). 

 

Tab 1 at 10-11. The appellant appears to argue that the agency “changed their story” to 

show that the appellant’s termination was initiated before her first disclosure to 

CALJ P.F. in early May 2012. Id. at 11. However, while noting that agency officials 

discussed the appellant’s separation prior to her protected disclosures, W-2 ID at 24, the 

administrative judge ultimately found that the appellant established the contributing 

factor element regarding disclosures (3) and (4). Thus, to the extent the agency may 

have submitted evidence to show the personnel action was contemplated prior to the 

appellant’s disclosures, the administrative judge did not find any such evidence to be 

dispositive concerning the contributing factor element. 
18

The agency established by clear and convincing evidence that it would have taken 

the same personnel action absent the appellant’s disclosures. 

¶30 In determining whether the agency has met its burden of proving by clear 

and convincing evidence that it would have taken the same personnel action in the 

absence of the appellant’s whistleblowing, the following factors should be 

considered: (1) the strength of the agency’s evidence in support of its personnel 

action; (2) the existence and strength of any motive to retaliate on the part of the 

agency officials who were involved in the decision; and (3) any evidence that the 

agency takes similar actions against employees who are not whistleblowers but 

who are otherwise similarly situated. Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs, 

116 M.S.P.R. 197, ¶ 36 (2011). When conducting an assessment of the Carr

factors, the U.S. Court of Appeals for the Federal Circuit has instructed the Board

to “evaluate all the pertinent evidence in determining whether an element of a 

claim or defense has been proven adequately,” Whitmore v. Department of Labor, 

680 F.3d 1353, 1368 (Fed. Cir. 2012), and, building on this directive, the Board 

has held that a proper analysis of the clear and convincing evidence issue requires 

that all of the evidence be weighed together—both the evidence that supports the 

agency’s case and the evidence that detracts from it, Shibuya v. Department of 

Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (citing Whitmore, 680 F.3d at 1368). 

¶31 Regarding Carr factor one, we agree with the administrative judge’s finding 

that the agency had strong evidence in support of its personnel action. W-2 ID 

at 23-24. As previously noted, the agency charged the appellant with 

“interact[ing] with others, including management, in an aggressive and 

inappropriate manner.” IAF, Tab 8 at 54. In reaching her finding concerning the 

first Carr factor, the administrative judge correctly noted that the record is replete 

with combative, adversarial emails sent by the appellant to her superiors. W-2 ID 

at 23. The record also contains evidence indicating that the appellant acted 

inappropriately towards nonmanagement employees. 
19

¶32 On April 13, 2012, the appellant sent M.H. an email demanding that she

answer a series of interrogatory-style questions about work assignments. 

W-2 AF, Tab 36 at 147-48. The email included the following: 

Please state which parts you disagree with (i.e. what is not to your 

understanding (see original email)). Clarify your position in 

disagreement. 

Let’s make this simple and basic: 

(1) Did I not request[] work be added to my queue on Thursday, 

April 12, 2012 via email? Yes or No? 

Id. On May 2, 2012, the appellant sent L.W., her second-line supervisor, an 

email objecting to L.W.’s instruction to pick up additional work or request leave 

as a “baseless, unconscionable personnel decision.” Id. at 132. The appellant 

further characterized L.W.’s response as “inappropriate” and accused agency

management of “incompetence.” Id. 

¶33 On May 24, 2012, M.H. sent an email to an agency official stating that the 

appellant had come to her office and accused another employee of “stealing” her 

“quick parts” to draft his decisions. Id. at 126. According to M.H., the appellant 

announced she was “going to confront [the employee].” Id. M.H. stated that, 

after discussing the issue with the employee, she asked the appellant to come to 

her office. Id. During their conversation, the appellant called M.H. “stupid” and 

“incompetent.” Id. M.H. expressed a concern in her email that the appellant 

would attempt to confront the employee later in the day, despite her instruction 

that she abstain from doing so. Id. While M.H.’s recollection of the appellant’s 

statements constitutes hearsay evidence, we find this evidence to have significant 

probative value. See Borninkhof, 5 M.S.P.R. at 87.

¶34 Following the appellant’s conduct on that date, M.H. decided to counsel the 

appellant about her recent behavior in the office. W-2 AF, Tab 6 at 80-83. M.H. 

subsequently memorialized her May 24, 2012 counseling session with the 

appellant in an email she sent to the appellant on that date . Id. According to 

M.H., before she could begin counseling the appellant, the appellant informed her 
20

“in a very loud and indignant manner that [she] had things stolen” from her office 

on three occasions. Id. at 80. M.H. stated that the appellant then yelled at her 

and told her she knew about the thefts. Id. M.H. advised the appellant that she 

had found the appellant’s behavior to be unprofessional on several occasions and 

reminded her that, as a licensed legal professional and Federal employee, she was 

obligated to treat all people with respect and courtesy. Id. The appellant 

responded by telling her that M.H. was not a licensed legal professional and that 

her license was fake. Id. M.H. further stated in the email that the appellant 

interrupted her constantly during the meeting, called her a liar, and stated that 

what M.H. was telling her was bullshit. Id. at 81. M.H.’s email description of 

her May 24, 2012 meeting with the appellant is corroborated by her sworn 

declaration, in which she alleged that, during the May 24, 2012 counseling 

session, the appellant had interrupted her numerous times, called her a liar, and 

told her that her law license was “fake.” W-2 AF, Tab 45 at 43. While M.H.’s 

account of the appellant’s statements constitutes hearsay, we find this evidence to 

have considerable probative value. See Borninkhof, 5 M.S.P.R. at 87. 

¶35 On July 26, 2012, the appellant sent M.H. an email stating, among other 

things, “[t]his back and forth is getting nowhere and is wasting time I could be 

writing, and you all could be doing more important things. I think we have 

another of your comprehension issues.” W-2 AF, Tab 36 at 118. The appellant’s 

email followed an email conversation between M.H. and the appellant during 

which the appellant stated that she could not “access references/research on the 

Intranet,” and M.H. attempted to help her resolve this issue. Id. at 118-19.

¶36 Upon considering the documentary evidence in support of the agency’s 

action, we affirm the administrative judge’s finding that the agency had strong 

evidence in support of the appellant’s termination. This evidence reflects that the 

appellant behaved in an inappropriate and unprofessional manner toward her 

managers and others at the agency both before and after M.H. counseled her on 

May 24, 2012. Further, as noted by the administrative judge, the agency warned 
21

the appellant that it was scrutinizing her during her trial period. W-2 ID at 24; 

IAF, Tab 5 at 80; see Lewis v. Department of the Army, 63 M.S.P.R. 119, 126 

(1994) (noting an agency’s obligation to use the probationary period to assess the 

appellant’s potential for success), aff’d, 48 F.3d 1238 (Fed. Cir. 1995). We thus 

find that Carr factor one weighs in the agency’s favor. 

¶37 Regarding Carr factor two, the administrative judge found that the agency 

officials involved in the appellant’s termination did not have a motive to retaliate 

against the appellant. W-2 ID at 24-26. In relevant part, the administrative judge 

found that management officials started discussing the appellant’s separation 

prior to the appellant’s protected disclosures. Id. at 24. The administrative judge 

noted that CALJ P.F.’s decision to terminate the appellant was firm by early 

July 2012, prior to the appellant’s July and August 2012 disclosures. Id. 

¶38 The appellant disputes the administrative judge’s finding regard Carr factor 

two on review, arguing that agency officials had a strong retaliatory motive and 

that they fabricated reasons for the personnel action following the decision to 

terminate her. PFR File, Tab 1 at 31. Specifically, as noted above, the appellant 

contends that the agency attempted to show that her termination was initiated 

before her first disclosure to the CALJ in early May 2012. Id. at 11.

¶39 The record reflects that agency officials were concerned about the 

appellant’s conduct prior to her first disclosure and considered the possibility of 

terminating her as early as May 2, 2012. In a sworn declaration, L.W. stated that 

the appellant had communicated impatiently and inappropriately with 

management in April 2012. W-2 AF, Tab 45 at 34. Because L.W. was concerned 

about the appellant’s misconduct, on May 2, 2012, she contacted P.B., an agency 

regional attorney, to inquire whether the appellant was hired under an 

excepted-service appointment. Id. at 35. L.W. stated that she “raised the issue 

because [she] was not sure if the other managers in the office were aware of [the] 

[a]ppellant’s status or the possibility of terminating her appointment.” Id. In a 

sworn declaration, P.B. stated that, in March 2012, he began assisting M.H. with 
22

“employee relations issues involving the [a]ppellant.” Id. at 38. He stated that 

L.W. contacted him on May 2, 2012, to discuss problems with the appellant and 

that L.W. asked him to determine whether the appellant was serving a trial period 

because she was concerned about the appellant’s behavior. M.H. stated in a 

sworn declaration that she contacted a regional agency attorney in April 2012 to 

discuss the appellant’s “rude and discourteous” manner. Id. at 44. Based on the 

documentary evidence, we find the appellant’s contention, that the agency 

“fabricated” reasons for her termination, lacks merit. The record reflects that the 

appellant’s supervisors expressed a strong concern about her conduct prior to her 

first disclosure in early May 2012 and that L.W. inquired about the possibility of 

terminating her as early as May 2, 2012. 

¶40 In light of this evidence, and a lack of record evidence suggesting a strong 

retaliatory motive on the part of relevant agency officials, we find that agency 

officials involved in the appellant’s termination did not have a strong motive to 

retaliate against the appellant. However, we disagree with the administrative 

judge’s finding that these officials had no motive to retaliate against the 

appellant. Agency officials that were either directly involved in or that could 

have influenced the decision to terminate the appellant were the subjects of her 

disclosures. Thus, we find that, under the circumstances of this case, relevant 

agency officials had a slight retaliatory motive. See Whitmore, 680 F.3d 

at 1370-71 (finding that the appellant’s criticisms “cast [the agency], and, by 

implication all of the responsible [agency] officials, in a highly critical light by 

calling into question the propriety and honesty of their official conduct”); 

Russell v. Department of Justice, 76 M.S.P.R. 317, 326 (1997) (considering the 

fact that the agency officials were the subjects of the appellant’s protected 

disclosures in determining that they had a retaliatory motive). We therefore 

modify the administrative judge’s finding regarding Carr factor two to find the 

existence of a slight retaliatory motive. 
23

¶41 Finally, regarding Carr factor three, the appellant alleges that the agency 

did not take similar actions against employees who had not engaged in 

whistleblowing but who were otherwise similarly situated. PFR File, Tab 1 at 33. 

Our reviewing court has long held that, for purposes of assessing this factor,

“Carr does not impose an affirmative burden on the agency to produce evidence 

with respect to each and every one of the three Carr factors to weigh them each 

individually in the agency’s favor,” and that “the absence of any evidence relating 

to Carr factor three can effectively remove that factor from the analysis.” 

Whitmore, 680 F.3d at 1374. However, it also has observed that “the 

Government’s failure to produce evidence on this factor ‘may be at the agency’s 

peril,’ considering the Government’s advantage in accessing this type of 

evidence.” Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016) 

(quoting Whitmore, 680 F.3d at 1374). 

¶42 Here, the agency contended that there were no other employees in the 

appellant’s office who demonstrated similar conduct issues. W-2 AF, Tab 45 

at 19. The agency further alleged that there were no other employees in that 

office who were serving a trial period like the appellant. Id. The administrative 

judge found, accordingly, that there was no evidence that the agency took similar 

actions against employees who are not whistleblowers but who are otherwise 

similarly situated. She concluded that this Carr factor helps neither the appellant 

nor the agency. W-2 ID at 27. 

¶43 We find that the administrative judge did not adopt an unduly restrictive 

view of what it means to be “similarly situated” for purposes of this appeal. 

Carr, 185 F.3d at 1327 (finding that “the ‘support staff’ employees of the New 

Haven hearing office were not similarly situated to Ms. Carr” when the 

employees were supervised under separate chains of command). Furthermore, we 

agree with the administrative judge’s finding that the third Carr factor is not a 

significant consideration under the circumstances of this case. See Rumsey v. 

Department of Justice, 120 M.S.P.R. 259, ¶ 36 (2013) (finding that, when there
24

was no evidence in the record concerning how the agency treated appropriate 

nonwhistleblower comparators, consideration of this factor did not materially 

assist the Board in deciding whether the agency had met its burden of proof). 

¶44 Even if Carr factor three could be found to “cut slightly against the 

Government,” we are nonetheless left with the firm belief that the agency would 

have taken the same action in the absence of the appellant’s protected disclosures 

based on the strength of the evidence in support of its action and the absence of a 

sufficient motive to retaliate against her. See Mithen v. Department of Veterans 

Affairs, 122 M.S.P.R. 489, ¶ 36 (2015) (holding that the Board does not view the 

Carr factors as discrete elements, each of which the agency must prove by clear 

and convincing evidence; rather, the Board will weigh the factors together to 

determine whether the evidence is clear and convincing as a whole), aff’d,

652 F. App’x 971 (Fed. Cir. 2016); Sutton v. Department of Justice, 94 M.S.P.R. 

4, ¶¶ 19-21 (2003) (finding that a whistleblower was lawfully removed based on 

the evidence under Carr factors one and two, when the record contained no 

evidence of action taken against similarly situated nonwhistleblowe rs), aff’d, 

97 F. App’x 322 (Fed. Cir. 2004). Accordingly, we agree with the administrative 

judge’s conclusion that the agency established by clear and convincing evidence 

that it would have terminated the appellant during her trial period in the absence 

of her protected whistleblower disclosures. Thus, we conclude that the appellant 

is not entitled to corrective action in her IRA appeal.8 

 

8 As previously noted, the appellant argued on review that the administrative judge 

committed a procedural error by delaying the issuance of the initial decision and that 

the administrative judge failed to consider that the agency violated the notice 

requirement in the appellant’s union contract by failing to provide her with sufficient 

notice of her termination. PFR File, Tab 1 at 7 n.2, 13, 26. These assertions do not 

provide a basis for review. The appellant’s argument that she received insufficient 

notice is not material to the dispositive issues in this IRA appeal. Furthermore, to the 

extent the issuance of the initial decision was delayed, the appellant has not shown that 

any delay prejudiced her substantive rights. An adjudicatory error that is not 

prejudicial to a party’s substantive rights provides no basis for reversal of an initial 

decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). 
25

NOTICE OF APPEAL RIGHTS9

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 approp riate 

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. 

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). 

 

9

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.
26

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. ____ , 137 S. Ct. 1975 (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 
27

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 

(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 
28

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.10 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. 

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 

 

10 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. 
29

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board