UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC WILLIAMS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-3330-16-0292-B-1

DATE: August 25, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Eric Williams, North Charleston, South Carolina, pro se.

Kiley Anne Holshey, Norfolk, Virginia, for the agency.

James M. Metcalfe, Portsmouth, Virginia, 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 remand initial decision, 

which denied his request for corrective action under the Veterans Employment 

Opportunities Act (VEOA) of 1998. Generally, we grant petitions such as this 

one only in the following circumstances: the initial decision contains 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review and AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 In July 2015, the appellant applied for a GS-9/11 Contract Specialist 

position advertised under vacancy ID 1460254 (job announcement number 

EA51102-12-1460254LZ122318D). Williams v. Department of the Navy, MSPB

Docket No. DC-3330-16-0292-I-1, Initial Appeal File (IAF), Tab 1 at 9, 16. 

After receiving the referral certificates, however, the agency decided to fill the 

position using the Expedited Hiring Authority (EHA) program2and did not select 

any candidate from the referral certificates. IAF, Tab 6 at 6. The appellant 

subsequently received notice indicating that the agency had “cancelled this

vacancy.”

3

 IAF, Tab 1 at 9. The appellant filed a complaint with the Department 

 

2 Under the EHA program, agencies are authorized “to recruit and appoint qualified 

persons directly to positions [designated by the Secretary of Defense] ” “as positions for 

which there exists a shortage of candidates or there is a critical hiring need.” 10 U.S.C. 

§ 1705(f). The agency submitted internal guidance reflecting that contracting positions 

within the Defense Acquisition Workforce have been designated as positions that may 

be filled using the EHA program under section 1705(f). IAF, Tab 6 at 17. 

3 During the hearing, the agency’s Human Resource Specialist clarified that the agency 

did not “cancel” the vacancy announcement. Williams v. Department of the Navy, 
3

of Labor (DOL) alleging that the agency violated his veterans’ preference rights

in failing to select him for the Contract Specialist position. Id. at 1. On 

January 5, 2016, DOL notified him that it had determined that the evidence did 

not support his allegation that the agency violated his veterans’ preference rights, 

informed him of his right to appeal the determination to the Board, and closed its 

investigation into his complaint. Id. at 1-3. 

¶3 The appellant timely filed a VEOA appeal with the Board and requested a 

hearing.

4

IAF, Tab 1. Without holding the requested hearing, the administrative 

judge issued an initial decision dismissing the appeal for lack of jurisdiction. 

IAF, Tab 7, Initial Decision. The appellant petitioned for review of the initial 

decision, and the Board found that he had established jurisdiction over his VEOA 

appeal and remanded the appeal for further adjudication. Williams v. Department 

of the Navy, MSPB Docket No. DC-3330-16-0292-I-1, Remand Order (Aug. 12,

2016). After holding a hearing, the administrative judge issued a remand initial 

decision denying the appellant’s request for corrective action on the merits. 

Williams v. Department of the Navy, MSPB Docket No. DC-3330-16-0292-B-1, 

Remand File (RF), Tab 12, Remand Initial Decision (RID). The appellant has 

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

 

MSPB Docket No. DC-3330-16-0292-B-1, Remand File, Tab 9, Hearing Compact Disc 

(testimony of Human Resource Specialist). Rather, she explained that the hiring 

officials returned the referral certificates to human resources without action after 

deciding not to select any candidate from the referral certificates. Id.

4

The appellant subsequently attempted to challenge his nonselection for the Contract 

Specialist position under job announcement number EA51102-12-1460254LZ122318D 

in another VEOA appeal, which the administrative judge dismissed as barred by 

collateral estoppel. See Williams v. Department of Navy, MSPB Docket No. AT-3330-

16-0663-I-1, Initial Decision (Aug. 4, 2016). The initial decision became the final 

decision of the Board when neither party petitioned for review. He also filed an appeal 

under the Uniformed Services Employment and Reemployment Rights Act of 1994, 

alleging that his nonselection for this position was based on his uniformed service, 

which is currently pending before the Board on the appellant’s petition for review 

following issuance of an initial decision. See Williams v. Department of Navy, MSPB 

Docket No. AT-4324-16-0662-I-1, Initial Decision (Aug. 29, 2016).
4

responded in opposition, and the appellant has replied to the agency’s response. 

Williams v. Department of the Navy, MSPB Docket No. DC-3330-16-0292-B-1, 

Remand Petition for Review (RPFR) File, Tabs 1, 3, 5. The appellant also filed a 

motion for leave to submit additional evidence. PFR File, Tab 6. In this motion, 

the appellant is seeking leave to submit “a one page written statement” regarding 

an exhibit which was provided on appeal, which the appellant admits is “not new 

information but expands on information already provided.” Id. The Board will 

not consider evidence raised for the first time in a petition for review absent a 

showing that it is based on new and material evidence not previously available 

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980). The appellant has made no such showing here. Accordingly, 

the appellant’s motion for leave is denied.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The Board has jurisdiction over two types of VEOA claims: (1) the denial 

of a right to compete; and (2) the violation of a statute or regulation relating to 

veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference 

claims); 5 U.S.C. §§ 3304(f)(1), 3330a(a)(1)(B), (right-to-compete claims); see

generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015). 

The appellant has raised both types of claims here. 

¶5 To establish Board jurisdiction over a right-to-compete VEOA claim, the 

appellant must show that he exhausted his remedy with DOL and make 

nonfrivolous allegations as to the following factors: (i) he is a veteran within the 

meaning of 5 U.S.C. § 3304(f)(1); (ii) the actions at issue took place on or after 

the December 10, 2004 enactment date of the Veterans’ Benefits Improvement 

Act of 2004; and (iii) the agency denied him the opportunity to compete unde r 

merit promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce in violation of 5 U.S.C. 

§ 3304(f)(1). Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 
5

(2010). To establish Board jurisdiction over a veterans’ preference claim, the 

appellant must show that he exhausted his remedy with DOL and make 

nonfrivolous allegations as to the following factors: (i) he is a preference eligible 

within the meaning of VEOA; (ii) the action at issue took place on or after the 

October 30, 1998 enactment date of VEOA; and (iii) the agency violated his 

rights under a statute or regulation relating to veterans’ preference. Miller v. 

Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 

818 F.3d 1361 (Fed. Cir. 2016). To prevail on the merits in a right-to-compete or 

veterans’ preference claim, the appellant must prove the jurisdictional elements 

by preponderant evidence. See Graves v. Department of Veterans Affairs, 

114 M.S.P.R. 209, ¶¶ 10, 19 (2010).

¶6 Previously, the Board found that the appellant established jurisdiction over 

his right-to-compete and veterans’ preference claims by proving that he exhausted 

his remedy with DOL and making the following nonfrivolous allegations: (1) he 

was a preference eligible; (2) the events took place after the enactment dates 

mentioned above; and (3) the agency denied him the right to compete under merit 

promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce and violated his rights 

under a statute or regulation relating to veterans’ preference . Williams, MSPB 

Docket No. DC-3330-16-0292-I-1, Remand Order at ¶¶ 12, 18. After holding a 

hearing, however, the administrative judge concluded that the appellant failed to 

establish his right-to-compete claim or his veterans’ preference claim by 

preponderant evidence. RID at 6-19. For the reasons set forth below, we agree. 

The administrative judge correctly determined that the appellant failed to prove 

his right-to-compete claim by preponderant evidence.

¶7 Pursuant to 5 U.S.C. § 3304(f)(1), agencies must afford preference eligibles 

and other covered individuals “the opportunity to compete for vacant positions 

for which the agency making the announcement will accept applications from 

individuals outside its own workforce under merit promotion procedures.” The 
6

requirement that agencies afford covered individuals the right to compete 

pursuant to 5 U.S.C. § 3304(f)(1) is not limited merely to situations in which an 

agency elects to use merit promotion procedures but, rather, is triggered when an 

agency accepts applications from individuals outside its own workforce. 

Montgomery v. Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 7 

(2016). An agency may violate a covered individual’s right to compete under 

section 3304(f)(1) when it deprives him of the right to apply by filling a position 

without the required public notice. Id., ¶ 5.

¶8 Here, it is undisputed that the agency accepted applications from 

individuals outside of its own work force to fill the Contract Specialist vacancies

and that the appellant applied to, but was not selected for, the position. IAF, 

Tab 1 at 9, Tab 6 at 6-7. He argued, however, that he was denied the right to 

compete for this position because the agency failed to follow its internal guidance 

to specify that the position would be filled using the EHA program in the vacancy 

announcement and failed to coincide its recruitment efforts under the EHA 

program with an open vacancy announcement. RF, Tab 2 at 1-2, Tab 6 at 3-6, 

Tab 10 at 2-5. 

¶9 The agency’s Expedited Hiring Authority for Select Acquisition Positions 

Pilot Guidance (EHA Guidance) provides that the agency may use the EHA 

program to fill select acquisition positions and describes the procedures and 

requirements for doing so. IAF, Tab 6 at 16-21. In relevant part, the EHA 

Guidance states that a vacancy announcement must be advertised on the 

USAJOBs website to satisfy public notice requirements and that the 

announcement must, among other things, identify use of the EHA program. Id.

at 18. Selections under the EHA may be made from a referral certificate

comprised of applications submitted through the vacancy announcement or 

through a name request, which enables hiring managers to appoint qualified 

candidates identified through their own targeted recruitment methods. Id. at 19. 

When using the referral certificate method, hiring managers must give 
7

preference-eligible candidates first consideration. Id. When using the name 

request method, hiring managers must submit a “name request” Request for 

Personnel Action to human resources, who will verify the candidate’s 

qualifications and review the vacancy announcement for eligible applicants under 

the Interagency Career Transition Assistance Program (ICTAP). Id. at 19-20. 

Hiring managers also may make on-the-spot tentative job offers at job fairs and 

other recruiting events under the EHA program, provided that public notice 

requirements have been met and priority programs have been cleared. Id. at 20. 

Such selectees are handled in the same manner as a name request. Id. The EHA 

Guidance further states that job fair and recruiting events must coincide with 

either a short-term or long-term vacancy announcement to meet public notice 

requirements. Id. at 18.

¶10 At the hearing, the Contract Resource and Policy Division Manager testified

that the agency used the name request method to fill the Contract Specialist 

positions under the EHA and that it obtained the names of the candidates from 

targeted recruitment efforts at job fairs and from referrals from current employees 

and other agency contracting offices. RF, Tab 9, Hearing Compact Disc (HCD) 

(testimony of Division Manager). A Supervisory Human Resources Specialist 

(HR Specialist) testified that the agency satisfied public notice requirements here 

by advertising the position under vacancy announcement number EA51102-12-

1460254LZ122318D from July 20, 2015, to July 30, 2015. HCD (testimony of 

HR Specialist); IAF, Tab 1 at 16-25. Although she acknowledged that the 

vacancy announcement did not identify use of the EHA program, as required by 

the agency’s EHA Guidance, she asserted that this requirement was merely

administrative and had no effect on the appellant’s ability to compete for the 

position. HCD (testimony of HR Specialist). She explained that the appellant did 

apply for the position but that he was not referred to the hiring official because 

only Best-Qualified candidates were referred, and the appellant was rated as Well 

Qualified on the basis of his self-assessment. Id. 
8

¶11 In the remand initial decision, the administrative judge found that the 

agency established the following: (1) it had the authority to fill, and did fill, the 

Contract Specialist positions using the EHA name request method; (2) it obtained 

the names of the applicants through target recruitment efforts, including job fairs 

and name referrals; and (3) that, while the agency acknowledged that the vacancy 

announcement did not identify use of the EHA authority, the appellant had not 

established that he was harmed by the omission. RID at 19. The appellant 

challenges these findings on review, arguing again that the agency failed to 

comply with its internal guidance for hiring under the EHA program and failed to 

provide adequate public notice for new Contract Specialist hires under the EHA 

program from December 2015 through July 2016. RPFR File, Tab 1 at 4-5, Tab 5 

at 5-6, 9, 13-17.

¶12 VEOA does not guarantee the preference-eligible appellant a position; the 

statute only affords him the right to compete for the position. See Abell v. 

Department of the Navy, 92 M.S.P.R. 397, 400-01 (2002), aff’d, 343 F.3d 1378

(Fed. Cir. 2003). In this case, it is undisputed that the appellant had an 

opportunity to, and did, apply for the Contract Specialist position. RF, Tab 7 

at 96. The HR Specialist testified that human resources reviewed the appellant’s

application but that, on the basis of his self-assessment score, he was not rated 

Best Qualified, and his application was not referred to the hiring official. HCD

(testimony of HR Specialist); RF, Tab 7 at 106-07. Because the appellant was 

permitted to apply for the position and was considered, he has received the right 

to compete to which he is entitled under VEOA. See Abell, 92 M.S.P.R. 

at 400-01 (stating that “5 U.S.C. § 3304(f) permits the appellant and others in like 

circumstances to apply, but otherwise they receive no special treatment in the 

process of filling a position under merit promotion procedures”). Therefore, 

although the appellant has identified potential public notice problems with the 
9

vacancy announcement,5he has failed to show by preponderant evidence that the 

agency denied him the right to compete. Accordingly, we find no basis to disturb

the administrative judge’s determination that the appellant failed to establish his 

right-to-compete claim. 

The administrative judge correctly determined that the appellant failed to prove 

his veterans’ preference claims by preponderant evidence.

¶13 The appellant also raised a veterans’ preference claim, alleging that the 

agency failed to credit him with all experience and education material to the 

position pursuant to 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) and selected

nonpreference eligibles over him, a preference eligible, in violation of the 

pass-over procedures of 5 U.S.C. § 3318. RF, Tab 2. To prevail in a veterans’ 

preference claim under VEOA, the appellant must prove by preponderant 

evidence that the agency’s action violated one or more of his statutory or 

regulatory veterans’ preference rights in its selection process. Graves,

114 M.S.P.R. 209, ¶ 10. Generally, in filling a vacancy in the competitive 

service, an agency must select from among the three, top-ranked candidates 

referred for consideration, and it may not “pass over” a preference eligible to 

 

5

The HR Specialist testified that the agency has since corrected the vacancy 

announcements to identify, when appropriate, the use of the EHA program to fill the 

Contract Specialist positions. HCD (testimony of HR Specialist). Nonetheless, the 

agency’s failure to identify the use of the EHA program to fill the Contract Specialist 

positions in the vacancy announcement at issue is troubling, as is the fact that the 

agency contends that it relied on the vacancy announcement for public notice for 

120 days even though it appeared to all potential preference-eligible applicants on 

USAJOBs that the vacancy announcement was closed or canceled. IAF, Tab 1 at 9, 

16-26. While the EHA Guidance provides that vacancy announcements that are 

“currently open or that have closed within the previous 120 days can be used to identify 

any ICTAP eligible candidates,” IAF, Tab 6 at 19-20, the agency has not provided any 

authority to support its contention that a closed vacancy announcement satisfies all 

public notice requirements for 120 days and allows the agency to hire during that time 

under the EHA program. However, because we find that the appellant was afforded an 

opportunity to compete in this particular case, we need not address the agency’s public 

notice deficiencies further.
10

select a candidate not entitled to preference. 5 U.S.C. § 3318(a); Goodin v. 

Department of the Army, 123 M.S.P.R. 316, ¶ 3 n.1 (2016). 

¶14 On remand, the administrative judge found that the appellant did not prove 

that the agency violated his veterans’ preference rights by failing to credit him 

with all material experience and education. RID at 8-12. In so finding, she

credited the HR Specialist’s testimony that the appellant’s answers to the 

Occupational Questionnaire placed him in the “Well Qualified” category of 

applications and that, in accordance with Category Rating procedures, his 

application was not referred to the hiring official because a sufficient number of 

“Best Qualified” applicants had applied for the position. RID at 12; HCD

(testimony of HR Specialist). The appellant does not challenge this finding on 

review, RPFR File, Tabs 1, 5, and we find no basis to disturb it. See Crosby v. 

U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the 

administrative judge’s findings when she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions on issues of 

credibility); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). 

¶15 The administrative judge also found that the appellant failed to show that 

the agency violated the pass-over procedures of section 3318. RID at 12-13. 

Specifically, she found as follows: (1) the agency did not make any selection 

from the referral certificates, which it returned without action; and (2) the agency

filled the Contract Specialist positions using the EHA name request method, 

which permits agencies to appoint qualified individuals without regard to 

veterans’ preference rights. The appellant generally challenges this finding on 

review. E.g., RPFR File, Tab 1 at 3-4, 8, 10, 12-13, 15, Tab 5 at 8, 12. 

¶16 First, we agree with the administrative judge that the appellant failed to 

show that the agency violated the pass-over procedures of section 3318 by 

selecting a nonpreference eligible over him, a preference eligible, because, as 

discussed above, the agency did not select any candidate referred under the 
11

vacancy announcement. See Abell v. Department of the Navy, 343 F.3d 1378, 

1384 (Fed. Cir. 2003) (finding that an agency did not violate a preference-eligible 

veteran’s right to compete under VEOA when it canceled a vacancy 

announcement); Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 

(2002) (finding that an agency is not required to fill a particular vacancy and does 

not violate an applicant’s veterans’ preference rights when it chooses not to make 

a selection), aff’d, No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).

¶17 Second, we agree with the administrative judge that the agency did not 

violate the appellant’s veterans’ preference rights when it appointed 

nonpreference eligibles to the Contract Specialist positions under the EHA 

program through the name request method. Under 10 U.S.C. § 1705(f), for 

purposes of 5 U.S.C. § 3304 and other statutes not implicated here, the Secretary 

of Defense may “designate any category of positions in the acquisition workforce

as positions for which there exists a shortage of candidates or there is a critical 

hiring need,” and he may use the authorities in such sections to recruit and make 

direct hires. 10 U.S.C. § 1705(f)(1)-(2). Section 3304(a)(3) of title 5, in turn, 

provides authority for agencies to hire candidates “without regard to the provision 

of sections 3309 through 3318” for positions for which public notice has been 

given and for which the Office of Personnel Management has determined “that 

there exists a severe shortage of candidates . . . or that there is a critical hiring 

need.” 5 U.S.C. § 3304(a)(3). Considering these statutes together, we find that 

appointments under the EHA name request method may be made without regard 

to veterans’ preference, including the pass-over procedures under section 3318. 

See Isabella v. Department of State, 109 M.S.P.R. 453, ¶ 12 (2008) (noting that 

“[t]he Supreme Court has instructed that when courts are confronted with statutes 

capable of coexistence, it is the duty of courts to regard each as effective ”). 

Therefore, the agency was not obligated to comply with the pass-over provisions 

under section 3318 when it filled the Contract Specialist positions, and the 

appellant has failed to prove a violation of his veterans’ preference rights.
12

NOTICE OF APPEAL RIGHTS6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

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

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

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

should contact that forum for more information. 

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

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

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: 

 

6

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

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

Board cannot advise which option is most appropriate in any matter.
13

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 

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 
14

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 

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 
15

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.7The 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 

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

any attorney will accept representation in a given case. 

 

7

The original statutory provision that provided for judicial review of certain 

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

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

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

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

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

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

132 Stat. 1510. 
16

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