UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHERMAN BRISCOE HOLMES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-14-0714-I-1

DATE: November 15, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Julius L. Carter, Esquire, Dayton, Ohio, for the appellant.

Demetrious A. Harris, Esquire, Cincinnati, Ohio, 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 

sustained his removal. Generally, we grant petitions such as this one only when: 

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

decision is based on an erroneous interpretation of statute or regulation or the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under 

section 1201.115 for granting the petition for review. Therefore, we DENY the 

petition for review. Except as expressly modified to address an additional 

consideration in the penalty determination, we AFFIRM the initial decision, still 

sustaining the removal.

BACKGROUND

¶2 The agency removed the appellant from his position as a Medical Support 

Assistant in the Dental Service at a Veterans Affairs (VA) Medical Center facility 

in Ohio, effective July 11, 2014, based on a charge of inappropriate conduct. 

Initial Appeal File (IAF), Tab 4 at 20, 39. The charge was based on four 

specifications: (1) mishandling a December 5, 2013 telephone call from a nurse 

who needed to speak to a dentist to obtain post-surgical antibiotics and pain 

medication for a veteran; (2) mishandling another December 5, 2013 telephone 

call by leaving a veteran on hold for 1 hour before instructing him to call back the 

next day to make an appointment; (3) placing a veteran’s wife on hold withou t her 

consent for 48 minutes before disconnecting her November 21, 2013 call and 

placing her on hold for 12 minutes during her January 2, 2014 call; and 

(4) calling his female coworkers “bitches” and using obscene language during a 

facilitated training meeting on March 7, 2014. Id. at 39-40. 

¶3 The agency informed the appellant that, in proposing his removal, it 

considered his prior discipline consisting of a 14-day suspension beginning 
3

August 26, 2011, for failure to follow supervisory instructions and ina ppropriate 

conduct, and his prior 14-day suspension beginning April 15, 2010, for 

inappropriate conduct. Id. at 40. Both of those disciplinary actions occurred 

during his employment at the VA Nursing Service before his reassignment to the 

Dental Service. Id. at 7, 39. 

¶4 After holding a 3-day hearing, the administrative judge issued an initial 

decision finding that the agency proved specifications 1 and 4, sustaining the 

inappropriate conduct charge, and finding that the appellant failed to prove his 

affirmative defenses of harassment based on sexual orientation and retaliation for 

filing a police report against his supervisor. IAF, Tabs 34, 37, 40, Hearing 

Compact Discs (HCDs); IAF, Tab 41, Initial Decision (ID) at 1, 3-25. The 

administrative judge also found that the deciding official’s personal knowledge of 

the appellant’s prior disciplinary history did not constitute a violation of 

constitutional due process because the appellant was advised in the proposed 

removal notice that his prior discipline would be considered and he was aware of 

his personal history with the deciding official. ID at 18. The administrative 

judge found that the deciding official appropriately considered the relevant 

factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), 

that the sustained misconduct was serious, that there was nexus between the 

misconduct and a legitimate Government interest, and that the penalty of removal

was within the tolerable bounds of reasonableness. ID at 13, 18-21. 

¶5 The appellant has filed a petition for review arguing the following: (1) the 

agency violated his due process rights; (2) the administrative judge abused her 

discretion by denying the appellant an opportunity to file a post-hearing brief; 

(3) the administrative judge erroneously concluded that the agency proved 

specifications 1 and 4; and (4) the appellant’s post-traumatic stress disorder 

(PTSD) should have been considered as a mitigating factor in the initial decision. 

Petition for Review (PFR) File, Tab 1 at 9-16.
4

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly determined that the appellant failed to prove 

that he was denied due process.

¶6 When an agency intends to rely on aggravating factors, such as prior 

discipline, as the basis for imposing a penalty, such factors should be included in 

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

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

Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 6 (2011). It is improper 

for a deciding official to rely on an employee’s alleged negative past work record 

in determining the penalty when the employee was not disciplined for the 

purported misconduct and which is mentioned as an aggravating factor for the 

first time in a Board proceeding. Id. (citing Stone v. Federal Deposit Insurance 

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

¶7 The Board’s reviewing court has held that, if an employee has not been 

given “notice of any aggravating factors supporting an enhanced penalty[,]” an 

ex parte communication with the deciding official regarding such factors may 

constitute a constitutional due process violation. Ward v. U.S. Postal Service, 

634 F.3d 1274, 1280 (Fed. Cir. 2011).2 When such circumstances are present, the 

court directed the Board to analyze whether the additional aggravating factors 

supporting an enhanced penalty constituted new and material information under 

the factors set forth in Stone. Id. 

¶8 Pursuant to Stone, the Board will consider the following factors, among 

others, to determine whether an ex parte contact is constitutionally impermissible: 

 

2

The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of 

the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 

538-39, 546-48 (1985), which held that a tenured public employee has a constitutionally 

protected property interest in ongoing public employment and that an agency may not

deprive such an employee of his property interest without providing him with due 

process of law, including the right to advance notice of the charges against him, an 

explanation of the agency’s evidence, and an opportunity to respond. See Stone, 

179 F.3d at 1374-76.
5

(1) whether the ex parte communication merely introduces “cumulative”

information or new information; (2) whether the employee knew of the error and 

had a chance to respond to it; and (3) whether the ex parte communications were 

of the type likely to result in undue pressure upon the deciding official to rule in a 

particular manner. Stone, 179 F.3d at 1377. If a constitutional violation has 

occurred, it cannot be considered a harmless error and the agency action must be 

reversed. See Ward, 634 F.3d at 1280. 

¶9 In his petition for review, the appellant alleges that the administrative judge 

erred in not finding a due process violation under the U.S. Court of Appeals for 

the Federal Circuit’s decisions in Ward and Stone. PFR File, Tab 1 at 9-14. The 

appellant argues that the agency denied his due process rights by failing to inform 

him that the deciding official considered misinformation about a prior removal 

action. Id. at 12-13. The appellant argues that the deciding official received 

ex parte information in a Douglas factor checklist, which incorrectly stated that 

the appellant’s past disciplinary history included a removal. Id. at 12; IAF, Tab 4 

at 24-28. The appellant argues that the agency did not inform him in the proposal 

notice that a prior removal action would be considered, although he was informed 

that the agency would consider his two prior 14-day suspensions. PFR File, 

Tab 1 at 12-13; IAF, Tab 4 at 39-41. He further argues that he did not have a 

prior removal and he had no opportunity to correct this misinformation upon 

which the deciding official relied. PFR File, Tab 1 at 12.

¶10 The record does not support a finding that the agency failed to notify the 

appellant of an aggravating factor actually relied upon by the deciding official. 

The deciding official testified that he considered the Douglas factors in reaching 

his decision to remove the appellant, but he did not prepare the Douglas factor 

checklist attached to his removal decision. IAF, Tab 34, HCD (testimony of the 

deciding official). Although the deciding official testified that he assumed the 

checklist was accurate, he further testified that he assumed that the removal 

mentioned on the checklist only referred to the removal he was implementing in 
6

this case. Id. He also testified that the only past disciplinary actions he 

considered were two 14-day suspensions, noting that he believed that he showed 

mercy to the appellant when he was the deciding official in one of the actions that 

resulted in the appellant’s suspension. Id. The deciding official did not testify 

that he considered or relied upon a prior removal or a proposed removal in 

addition to the suspensions identified in the proposal notice. Moreover, the 

appellant acknowledged that the agency provided notice that his two 14-day 

suspensions would be considered by the deciding official. PFR File, Tab 1 at 12.

¶11 The administrative judge considered but rejected the appellant’s argument 

that the deciding official violated his due process rights and placed unfair 

emphasis on his past interaction with the appellant and his previous discipline. 

ID at 17-18; PFR File, Tab 1 at 12-14. A review of the initial decision shows that 

the administrative judge properly evaluated the hearing testimony and made 

credibility determinations in accordance with the standards set forth in Hillen 

v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-13; see Crosby 

v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to 

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

whole, drew appropriate references, and made reasoned conclusions); Broughton 

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

¶12 The appellant has not shown that the deciding official’s decision, on the 

merits of the underlying charge or the penalty to be imposed, was influenced by 

new and material information not previously disclosed to the appellant. 3 First, 

 

3

The appellant filed a prior appeal with the Board challenging the agency’s decision to 

remove him from service effective August 26, 2011, for failure to follow supervisory 

instructions and inappropriate conduct. IAF, Tab 4 at 97. The agenc y settled that 

appeal, by agreeing to reinstate the appellant, reassign him to a Medical Support 

Assistant position in the Dental Service, and mitigate the penalty to a 14 -day 

suspension. Id. The Medical Center Director who signed the settlement agreement is 

the same official who decided to remove the appellant effective July 11, 2014, for the 

inappropriate conduct charged in this case. Id. at 99. The agency’s notice of proposed 

removal in this case advised the appellant that the agency would consider his past 

record, including his 2011 suspension, in determining the proper disciplinary action. 
7

the deciding official’s testimony reflects that he was not introduced to new and 

material ex parte information about a prior removal action involving the 

appellant. Second, the appellant was aware that the deciding official also was 

involved in the settlement that mitigated his removal to a 14-day suspension, 

which was referenced in the proposal notice; therefore, the appellant had a chance 

to respond to it. Third, we find no evidence that the deciding official’s personal 

knowledge of the appellant’s past discipline was of the type likely to result in 

undue pressure to make any particular decision in this case. See Stone, 179 F.3d 

at 1376-77; see also Norris v. Securities & Exchange Commission, 675 F.3d 1349, 

1353-54 (Fed. Cir. 2012) (finding that a deciding official’s mere knowledge of an 

employee’s earlier misconduct obtained before starting disciplinary proceedings 

was not new and material information and did not constitute an improper ex parte

communication). We therefore find that the appellant did not prove that his due 

process rights were violated. 

The administrative judge did not abuse her discretion by disallowing post-hearing 

briefs.

¶13 On review, the appellant also argues that the administrative judge abused 

her discretion by reversing her prior decision to allow post-hearing briefs. PFR 

File, Tab 1 at 18. We find that the appellant has not shown that the 

administrative judge prejudiced his substantive rights or abused her discretion by 

disallowing post-hearing briefs after affording the appellant a 3-day hearing to 

present his case on his appeal. It is within the administrative judge’s discretion to 

keep the record open for a period of time after the hearing to allow the parties to 

submit additional evidence and argument. See 5 C.F.R. § 1201.59(a). Moreover, 

the appellant has not identified any new evidence, which the administrative 

judge’s ruling allegedly precluded him from presenting and would have warranted

 

Id. at 40. Thus, the appellant knew that this prior history would be considered, and he 

was aware that the deciding official had personal knowledge of the prior removal action 

that was settled and resulted in the 2011 suspension. 
8

an outcome different from that of the initial decision. Therefore, the appellant 

has shown no basis for reversing the initial decision. See Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant 

a petition for review based on new evidence absent a showing that it is of 

sufficient weight to warrant an outcome different from that of the initial 

decision). 

The administrative judge correctly found that the agency proved the charge of 

inappropriate conduct.

¶14 The Board’s regulations require that the agency action must be sustained if 

it is supported by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(1)(ii). 

On review, the appellant argues that the agency failed to prove that he was the 

employee who mishandled the December 5, 2013 telephone call from the nurse in 

specification 1. PFR File, Tab 1 at 14-15. The appellant also challenges the 

administrative judge’s finding that the agency proved specification 4. 

Concerning that specification, the appellant argues that he should not be 

penalized for speaking candidly as requested by management, and that the Deputy 

Service Chief “expected people to offend each other” during the meeting. Id.

at 16. The appellant further argues that he did not direct his offensive words at 

any particular person and that he stopped using offensive language when directed 

to do so during the meeting. Id. at 18. 

¶15 The administrative judge considered the documentary evidence and the 

witnesses’ testimony during the 3-day hearing, and she found that the agency 

proved by preponderant evidence specifications 1 and 4 and the inappropriate 

conduct charge. ID at 3-13. Regarding specification 4, the administrative judge 

compared the agency’s version of events during the meeting—that the appellant 

said words to the effect of “I want to help people, but when she’s a BITCH, and 

she’s a BITCH, and she’s a BITCH, I just want to say FUCK IT!”—with the 

appellant’s version—he only stated during the meeting that he “wanted to call

[his female coworkers] bitches or other derogatory words.” ID at 9-12; IAF, 
9

Tab 4 at 40 (emphasis in original), 87; IAF, Tab 37, HCD (testimony of the 

appellant). The administrative judge found the appellant’s version of the events 

“less credible.” ID at 11. The administrative judge based this finding on the 

appellant’s inconsistent statements, the largely consistent statements by agency 

witnesses that were reduced to writing shortly after the March 7, 2014 training 

meeting, the consistency of those written statements with the live testimony of an 

agency witness who was present at the meeting, and the “straightforward” 

demeanor of that agency witness.4 ID at 11-12. 

¶16 The Board must give deference to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Contrary to the 

administrative judge, we do not find the appellant’s statements—that he did not 

tell his supervisors about bullying based on sexual orientation, but he told the 

deciding official during his reply to the notice of proposed removal that the 

bullying was based on sexual orientation—to be inconsistent. ID at 11. 

However, our disagreement with the administrative judge on this issue does not 

warrant a different outcome because it is well established that when, as here, an 

administrative judge has heard live testimony, her credibility determinations must 

be deemed to be at least implicitly based upon the demeanor of the witnesses. 

See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 

2016) (finding that the Board must defer to an administrative judge ’s 

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly 

discussed”); Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 

(2009). Therefore, the administrative judge’s credibility determinations are 

 

4

The administrative judge further found that this agency witness had no personal 

history with the appellant, was not the target of the derogatory term, and had no motive 

to exaggerate her testimony. ID at 11-12. 
10

entitled to deference and the appellant has not presented sufficiently sound 

reasons to overturn her findings. 

¶17 Ultimately, we discern no reason to reweigh the evidence or substitute our 

assessment of the record evidence for the thorough, well-reasoned, 

demeanor-based findings of the administrative judge. See Crosby, 74 M.S.P.R. 

at 105-06; Broughton, 33 M.S.P.R. at 359. We affirm her finding that the agency 

proved specifications 1 and 4. Moreover, on review, the appellant does not 

specifically dispute that the two sustained specifications are more than sufficient 

to sustain the charge. See Burroughs v. Department of the Army, 918 F.2d 170, 

172 (Fed. Cir. 1990). 

¶18 Although the appellant also claims that the administrative judge omitted 

certain material facts, an administrative judge’s failure to mention all of the 

evidence of record does not mean that she did not consider it in reaching her

decision. PFR File, Tab 1 at 11; see Marques v. Department of Health & Human 

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) 

(Table). The appellant’s arguments on review present no reason to disturb the 

administrative judge’s finding that the agency proved by preponderant evidence 

specifications 1 and 4 and the inappropriate conduct charge. 

The removal penalty was reasonable for the sustained misconduct.

¶19 When, as here, all of the agency’s charges are sustained, but some of the 

underlying specifications are not sustained, the agency’s penalty determination is 

entitled to deference and should be reviewed only to determine whether it is 

within the parameters of reasonableness. Payne v. U.S. Postal Service, 

72 M.S.P.R. 646, 650 (1996). 

¶20 The deciding official considered many relevant mitigating and aggravating 

factors, such as the following: the appellant had 3 years and 11 months of 

service; his conduct was serious and offensive to his coworkers; and he had 

two prior 14-day suspensions for engaging in similar inappropriate conduct. ID 

at 14-15; IAF, Tab 4 at 24-28, Tab 34, HCD (testimony of the deciding official). 
11

The deciding official determined that removal was reasonable and rehabilitation 

was not possible under the circumstances because (1) the appellant’s misconduct 

was serious and offensive, (2) he showed no remorse, and (3) he engaged in 

inappropriate conduct after two previous 14-day suspensions for similar 

inappropriate conduct. ID at 17-18. The administrative judge found that the 

agency weighed the relevant factors in implementing the appellant’s removal, and 

the penalty of removal does not exceed the bounds of reasonableness. ID 

at 14-16, 18-21. 

¶21 On review, the appellant reiterates that some of his coworkers made 

anti-gay statements and used anti-gay slurs in his presence, which created a 

hostile work environment, these coworkers were present during the March 7, 

2014 training meeting, and he and his coworkers were encouraged during this 

meeting to discuss issues that were going on in the office to improve the work 

environment. PFR File, Tab 1 at 5, 9-10. The record reflects that the deciding 

official and the administrative judge did not specifically consider the appellant’s 

allegations of harassment or bullying based on sexual orientation in their 

respective penalty analyses.5 This was error. The deciding official and the

administrative judge should have considered the appellant’s allegations of 

bullying and harassment based on sexual orientation in this regard under 

Douglas factor 11, “mitigating circumstances surrounding the offense, such as 

unusual job tensions . . . [and/or] . . . harassment.” Douglas, 5 M.S.P.R. at 305; 

see Hanna v. Department of Labor, 80 M.S.P.R. 294, ¶ 16 (1998) (stating that the 

 

5

For example, in the Douglas factors worksheet, the deciding official indicated that he 

did not consider any mitigating circumstances such as unusual job tensions, personality 

problems, harassment, or provocation by others involved. IAF, Tab 4 at 27-28. The 

deciding official testified that the appellant presented, as a mitigating circumstance, 

that he was treated differently due to his sexual orientation, but the deciding official 

was not asked, and he did not explain, how the appellant was treated differently. IAF, 

Tab 34, HCD (testimony of the deciding official). The administrative judge discussed 

the appellant’s allegations of harassment or bullying in her evaluation of specification 4 

and the appellant’s sexual orientation discrimination claim, ID at 10-11, 13, 21-23, but 

she did not specifically discuss them in her penalty analysis, ID at 14-16, 18-21. 
12

Board may consider in its penalty analysis the stress and tension cre ated in a 

work environment when there is animus based on the appellant’s national origin 

even if it finds that the agency did not discriminate against the appellant). 

¶22 Therefore, we modify the initial decision to consider, as a mitigating factor, 

the appellant’s statements in the record and his testimony regarding bullying and 

harassment in the workplace created by his coworkers’ anti-gay statements and 

slurs in his presence, the fact that the coworkers that made the statements and 

slurs were present during the March 7, 2014 meeting, and that he and his 

coworkers were encouraged to raise issues during this meeting to improve the 

office work environment. IAF, Tab 4 at 87, Tab 21 at 20-25, Tab 37, HCD 

(testimony of the appellant). For the purposes of our analysis, we credit the 

appellant’s statements and testimony in this regard, and we make clear that the 

offensive language described by the appellant cannot and should not be tolerated 

in the workplace. However, these circumstances do not justify or explain the 

appellant’s use of profane and offensive language during the March 7, 2014 

training meeting, and we likewise do not condone his use of such language in the 

workplace. Moreover, these circumstances have no relation to specification 1, 

which we have also sustained herein. We conclude that such evidence does not 

warrant mitigation of the removal penalty.

¶23 The appellant further argues that his PTSD and side effects of his 

medication should have been considered as mitigating factors in the initial 

decision. PFR File, Tab 1 at 18. We find, however, that these factors were 

properly considered. ID at 15-16. The administrative judge found that the 

appellant did not provide any medical evidence to the deciding official and that 

the deciding official did not consider the condition as a mitigating factor. ID 

at 15. The administrative judge considered the appellant’s testimony that he did 

not recall informing the deciding official that he had PTSD, and that he did not 

believe that his disability affected his ability to do his job. Id.; IAF, Tab 37, 

HCD (testimony of the appellant). The administrative judge also considered that 
13

the appellant submitted evidence on appeal showing that he first sought a doctor’s 

assessment on the day that he received the removal notice and that neither his 

physician’s letter nor the testimony of witnesses at the hearing attributed the 

appellant’s inappropriate conduct to a medical condition. ID at 15. The appellant 

submits no new and material evidence to the contrary on review. We therefore 

agree with the administrative judge’s finding that the agency did not err in failing 

to consider the appellant’s PTSD as a mitigating factor. 

¶24 Having considered the appellant’s arguments, we find that removal for the 

sustained misconduct is within the limits of reasonableness and promotes the 

efficiency of the service. We affirm the initial decision as modified and sustain 

the appellant’s removal.

NOTICE OF APPEAL RIGHTS6

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

Board’s final decision in this matter. 5 U.S.C. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

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

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

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

chosen forum.

 

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.
14

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

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

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

should contact that forum for more information. 

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

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

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

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

§ 7703(b)(1)(A). 

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
15

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 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 

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: 
16

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

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

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

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

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

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

of appeals of competent jurisdiction.7 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). 

 

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. 
17

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case. 

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

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

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

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board