UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CAROL H. HOWARD,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

SF-1221-15-0609-B-1

DATE: June 7, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Yolanda Flores-Burt, Esquire, Hesperia, California, for the appellant.

Stuart Bauch, Esquire, Stockton, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

which denied her request for corrective action in this individual right of action 

(IRA) appeal. Generally, we grant petitions such as this one only in the following 

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

 

1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 

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

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

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

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

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

or the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

VACATE the administrative judge’s alternative finding that the agency proved by 

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

absence of the alleged disclosures or activities, we AFFIRM the initial decision.

¶2 The appellant filed this IRA appeal, concerning her July 2014 removal for 

physical inability to perform the duties of her Correctional Treatment Specialist

position. Howard v. Department of Justice, MSPB Docket No. SF-1221-15-0609-

W-1, Initial Appeal File (IAF), Tab 1. After developing the record and holding 

the requested hearing, the administrative judge denied the appellant’s request for 

corrective action. IAF, Tab 36, Initial Decision (ID). In doing so, his decision 

addressed only one disclosure–that her facility was utilizing unlicensed 

psychologists. ID at 9, 11. While the administrative judge found that the 

appellant presented a prima facie case of whistleblower retaliation, he also found 

that the agency met its burden of proving that it would have taken the same action 

in the absence of the disclosure. ID at 11-23.

¶3 On review, the Board vacated the initial decision and remanded for further

adjudication. Howard v. Department of Justice, MSPB Docket No. SF-1221-15-

0609-W-1, Remand Order (RO) (Sept. 9, 2016). The Board found that the 

administrative judge failed to address all of the disclosures or activities the 
3

appellant identified as motivating her removal. RO, ¶¶ 8-12. The remand order 

identified the appellant’s disclosures or activities as follows: 

1. The lack of a RESOLVE program, allegedly in violation of the 

agency’s guidelines; 

2. All full-time psychology services were vacated at the camp and staff 

were called into work on an as-needed basis, allegedly to save costs 

so that the executive staff could receive bonuses; 

3. An inmate was not treated appropriately by the Chief of Psychology 

after she alleged she had been threatened by other inmates; 

4. Reprisal for allegations of discrimination that she raised in 2014 on 

behalf of herself and others in her role as a union representative, and 

reprisal for her own equal employment opportunity (EEO) 

complaints; 

5. A particular employee had a degree in philosophy, not psychology, 

but was permitted to practice on inmates, which was illegal and 

harmful; and 

6. The agency hired unlicensed psychologists to practice on inmates.

RO, ¶¶ 9-10.

¶4 On remand, the administrative judge further developed the record, without 

holding an additional hearing, then, once again denied the appellant’s request for

corrective action. Howard v. Department of Justice, MSPB Docket No. SF-1221-

15-0609-B-1, Remand Appeal File (RAF), Tab 19, Remand Initial Decision 

(RID). The appellant has filed a petition for review. Remand Petition for Review 

(RPFR) File, Tab 1 at 4-18.

The administrative judge did not improperly deny the appellant a remand hearing.

¶5 As an initial matter, the appellant argues that the administrative judge 

improperly denied her the opportunity to hold another hearing during the remand 

proceedings. E.g., RPFR File, Tab 1 at 4. However, despite the appellant’s 

suggestion to the contrary, our remand order did not require a hearing—it 

instructed the administrative judge to determine if additional hearing testimony 

was necessary. RO, ¶ 13. The administrative judge followed that instruction and 

afforded the parties the opportunity to explain whether additional hearing 
4

testimony was needed. RAF, Tab 8 at 3. Although the appellant responded by 

indicating that she did wish to elicit additional testimony, the administrative 

judge was not persuaded that it was necessary. RAF, Tab 9 at 5, Tab 12 at 1. 

The appellant did not, for example, allege that the initial hearing was improperly 

limited to the sole disclosure addressed in the initial decision, such that additional 

testimony would be required to develop the other disclosures and activities we 

identified in our remand order. And while we reviewed both the prehearing 

summary and hearing transcript from the original proceedings, we found no such 

limitations. IAF, Tab 29, Tab 35, Hearing Recording; Hearing Transcript (HT). 

It appears that the administrative judge’s initial hearing in this case afforded the 

appellant the latitude to develop any disclosure or activity she wished. E.g., HT

at 45-46. Therefore, we find no impropriety in the administrative judge’s 

decision to hold no additional hearing. 

The appellant failed to meet her burden of proving that she made a protected 

disclosure or engaged in protected activity relevant to this IRA appeal.

¶6 Turning to the substance of the instant appeal, the Board has jurisdiction 

over an IRA appeal if the appellant exhausts her administrative remedies befo re 

the Office of Special Counsel (OSC) and makes nonfrivolous allegations that: 

(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in 

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); 

and (2) the disclosure or protected activity was a contributing factor in the 

agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. 

§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans 

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

¶7 If an appellant establishes jurisdiction over her IRA appeal, she is entitled 

to a hearing on the merits of her claim, which she must prove by preponderant 

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

If the appellant makes such a showing, the burden shifts to the agency to prove by 
5

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

absence of the disclosure. Id. 

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

appellant presented nonfrivolous allegations that each of the 6 disclosures or 

activities at issue was protected. RID at 13-14. He also found that the appellant 

presented nonfrivolous allegations that each was a contributing factor in her 

removal through the knowledge/timing test. RID at 14. Therefore, the 

administrative judge determined that the appellant met her jurisdictional burden 

for each of the six enumerated disclosures or activities. Id. He then turned to the 

question of whether the appellant met the higher burden of proving the merits of 

her claim, but found that she did not. The administrative judge concluded that the 

appellant failed to prove, by preponderant evidence, that she made a prot ected 

disclosure or engaged in protected activity. 2 RID at 14-19.

¶9 A protected disclosure is a disclosure of information that the 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. Shannon v. Department of 

Veterans Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). The proper test for assessing 

whether a protected disclosure occurred is an objective one: Could a 

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

ascertainable by the employee reasonably conclude that the actions of the 

 

2

The administrative judge further found that, even if the appellant had met her burden 

of establishing a prima facie case, the agency met its burden of proving that it would 

have taken the same action in the absence of her disclosures or activities. RID at 19 -31. 

However, as we explained in our remand order, the Board may not proceed to the clear 

and convincing evidence test unless it has first made a finding that the appellant 

established her prima facie case. RO, ¶ 14; see 5 U.S.C. § 1221(e)(2); Scoggins v. 

Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). Accordingly, we must vacate 

the administrative judge’s alternative findings. See RID at 19-31.
6

Government evidence one of the categories of wrongdoing identified in 5 U.S.C. 

§ 2302(b)(8)(A)? Id. 

¶10 As will be discussed further below, the appellant’s petition for review 

contains very little argument pertaining to her disclosures or activities, i.e.,

whether they were protected and whether they were a contributing factor in her 

removal. Moreover, of the limited argument the appellant did present, she 

generally failed to support it by identifying specific and relevant evidence from 

the record. See 5 C.F.R. § 1201.115(a)(2) (requiring that a petition for review 

explain why the challenged factual determination is incorrect and identify 

specific evidence in the record that demonstrates the error); Tines v. Department 

of the Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review 

must contain sufficient specificity to enable the Board to ascertain whether there 

is a serious evidentiary challenge justifying a complete review of the record). 

Disclosure 1

¶11 As described by OSC’s predetermination letter and noted in our remand 

order, disclosure 1 involved the lack of a RESOLVE program, allegedly in 

violation of the agency’s guidelines. RO, ¶ 9; IAF, Tab 27 at 430. The

administrative judge found that while the appellant did request the program, 

which was intended to help inmates deal with trauma that predated their 

incarceration, the appellant failed to prove that her request was a protected 

disclosure. RID at 15. In doing so, the administrative judge referenced the email 

chain in which the appellant apparently made this disclosure. The email chain 

begins with the appellant making a number of suggestions, including the 

following: “I believe we are suppose[d] to have a Resolve Program. I have 

mentioned this for years and to date there has been no program.” IAF, Tab 18 

at 132-33. The recipient responded by indicating that he also wanted the 

program, and he had requested it, but there was no timeline yet for receiving it. 

Id. at 132. 
7

¶12 On review, the appellant provides only a brief argument concerning 

disclosure 1. She suggests that there was other evidence in support of this being 

a protected disclosure. RPFR File, Tab 1 at 8. However, the appellant failed to 

identify what that evidence was or where it may be located in the record. She did 

reference a document included with her petition, but it is not apparent how that 

document is of any relevance to the apparent lack of a RESOLVE program. 

Compare id. at 8 (referencing “Exhibit 5-5b”), with RPFR File, Tab 2 at 4-6 (an

unexplained document identified as Exhibit 5-5b, which appears to be part of a 

blog posting that describes life as an inmate at the appellant’s former facility). 

¶13 The appellant also argues that “a disinterested observer would find 

something wrong with an agency not providing a Trauma Program to female 

inmates.” RPFR File, Tab 1 at 8. Even if we agreed that there is “something 

wrong” with a correctional facility lacking a trauma program, that is not what the 

appellant disclosed. The record shows that she discussed the lack of a very 

specific program, and she has presented no basis for us to conclude that the 

absence of that particular program reflected a specific type of wrongdoing 

described in section 2302(b)(8), or that she reasonably believed it was. 

Accordingly, we find no basis for reaching a conclusion contrary to the 

administrative judge. The appellant has failed to meet her burden of proving that 

disclosure 1 was protected.

Disclosure 2

¶14 As described by OSC’s predetermination letter and noted in our remand 

order, disclosure 2 reportedly involved full-time psychology services being 

vacated from an agency facility and staff being called into work on an as-needed 

basis, allegedly to save costs so that the executive staff could receiv e bonuses. 

RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while the 

appellant presented testimony alleging that she made a disclosure about this 

matter, the appellant failed to prove that she had a reasonable belief that the 
8

disclosure described the type of wrongdoing described in section 2302(b)(8). 

RID at 16. 

¶15 On review, the appellant does not appear to present any particularized 

argument about disclosure 2. She does describe an interaction when she

reportedly asked one agency official why her facility lacked funds for drug 

programs, the official responded by indicating that the agency did have associated 

funding, the appellant asked where the money was, and the official directed her to 

another agency official for more information. RPFR File, Tab 1 at 13. The

appellant goes on to state that she “was not aware at that time that the 

managers . . . were giving themselves bonuses with the money.” Id. However,

this interaction does not appear to be the alleged disclosure the appellant 

discussed below. Compare id., with HT at 49-50, 61 (testimony from the 

appellant, suggesting that she contacted Congress to inform them of a unit that 

was available but unfilled, possibly to save money and be rewarded with 

bonuses). Even if it were, the appellant’s own description on review 

demonstrates that she did not disclose any improper use of funding–she merely 

asked for more information about funding. 

¶16 Although the appellant did not present any particularized arguments about 

the disclosure described in her hearing testimony, we note the following, to 

bolster the administrative judge’s findings. While the appellant reportedly 

disclosed that a unit was available but unfilled, possibly so that agency officials 

could save money and be rewarded with bonuses, those allegations are lacking in 

detail. See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 13 (2006) 

(recognizing that a disclosure must be specific and detailed, not a vague 

allegation of wrongdoing regarding broad or imprecise matters). She does not 

appear to present, for example, a persuasive argument that the failure to use this 

unfilled unit amounted to gross mismanagement or a substantial and specific 

danger to public health or safety, rather than purely a discretionary policy 

decision. See 5 U.S.C. § 2302(b)(8); O’Donnell v. Department of Agriculture, 
9

120 M.S.P.R. 94, ¶ 14 (2013) (holding that an appellant’s alleged protected 

disclosure was “exactly the type of fairly debatable policy dispute that does not 

constitute gross mismanagement”), aff’d, 561 F. App’x 926 (Fed. Cir. 2014).

Disclosure 3 

¶17 As described by OSC’s predetermination letter and noted in our remand 

order, disclosure 3 reportedly involved an inmate being treated inappropriately by 

the Chief of Psychology after she alleged she had been threatened by other 

inmates. RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while 

the appellant presented some testimony alleging that a clinician purposefully 

misdiagnosed an inmate, she failed to meet her burden of proof because the 

appellant offered nothing else to support the claim or the alleged disclosure. RID

at 16.

¶18 On review, the appellant disagrees with the administrative judge’s findings, 

once again suggesting that there was additional documentary evidence in support 

of disclosure 3. RPFR File, Tab 1 at 8. However, she has once again failed to 

identify what that additional evidence might be or where we might find it in the 

record. The appellant merely refers to “Exhibit 4,” which we assume is a 

reference to the evidence she attached to her petition, but that evidence consists 

only of news articles, blog postings, and an advertisement for legal services, none 

of which appear particularly relevant to the appellant’s burden of proof. RPFR

File, Tab 1 at 8, 19, 36-41, Tab 3 at 4-8.

Disclosure or activity 4 

¶19 As described by OSC’s predetermination letter and noted in our remand 

order, disclosure or activity 4 reportedly involved allegations of discrimination 

that she raised in 2014 on behalf of herself and others in her role as a union 

representative, and reprisal for her own EEO complaints. RO, ¶ 9; IAF, Tab 27 

at 430. The administrative judge found that while the appellant reportedly filed 

EEO complaints, the substance of those complaints did not seek to remedy 
10

whistleblower reprisal, so they did not constitute protected disclosures or 

activities for purposes of this IRA appeal. RID at 17; see, e.g., Edwards v. 

Department of Labor, 2022 MSPB 9, ¶ 25 (finding that the Board lacked 

jurisdiction over the appellant’s EEO reprisal claim under 5 U.S.C. 

§ 2302(b)(9)(A)(i) because his EEO complaint sought to remedy Title VII-related 

matters, not whistleblower reprisal); cf. Mudd v. Department of Veterans Affairs, 

120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that under the Whistleblower 

Protection Enhancement Act of 2012, the Board’s jurisdiction in IRA appeals was 

expanded to cover claims of reprisal for EEO complaints in which the appellant 

sought to remedy whistleblower reprisal).

¶20 On review, the appellant asserts that the administrative judge failed to 

address her claims of reprisal for assisting a coworker. RPFR File, Tab 1 at 8; 

see generally Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶¶ 4-6 

(2014) (finding that, in the context of an IRA appeal, the Board has jurisdiction 

over claims of retaliation for lawfully assisting a coworker in a grievance 

proceeding). But again, the appellant has failed to specifically identify evidence 

in support of any such activity. Our remand order did recognize that the 

appellant’s correspondence with OSC involved “allegations of 

discrimination-related issues [the appellant] raised in 2014 on behalf of others 

and [herself] in [her] role as a union representative.” IAF, Tab 27 at 430; RO,

¶ 9. However, we have yet to find a clear articulation of pertinent details, such as 

when this activity may have occurred, what it involved, and how it may have 

contributed to the personnel action before us. We also are unable to determine 

what, if any, pertinent evidence the appellant submitted in support of this activity. 

The appellant’s remand petition refers only to “a prior deposition, emails, etc.” 

RPFR File, Tab 1 at 8. Absent more information, we will not pour through the 

voluminous record or disturb the administrative judge’s findings on disclosure or 

activity 4. See 5 C.F.R. § 1201.115(a)(2); Tines, 56 M.S.P.R. at 92.
11

Disclosure 5 

¶21 As described by the appellant in response to OSC’s predetermination letter 

and noted in our remand order, disclosure 5 reportedly involved an employee 

having a degree in philosophy, not psychology, but being permitted to practice on 

inmates, which was illegal and harmful. RO, ¶ 10; IAF, Tab 27 at 435. The

administrative judge found that the appellant made the conclusory assertion that 

this individual’s employment was “against the law,” but she offered little else on 

the matter. RID at 17-18. He further found that, without more, the appellant 

failed to meet her burden of proving that this was a protected disclosure. Id. On 

review, we are unable to locate any argument about this matter. Therefore, we 

will not revisit or disturb the administrative judge’s conclusion. 

Disclosure 6 

¶22 As described by the appellant in response to OSC’s predetermination letter 

and noted in our remand order, disclosure 6 reportedly involved the agency hiring 

unlicensed psychologists to practice on inmates. RO, ¶ 10; IAF, Tab 27 at 435. 

The administrative judge found that while the appellant did make this disclosure, 

agency officials responded by informing her that licenses were not required. RID

at 18-19. He further found that, considering the information readily available to 

her, a disinterested observer could not have reasonably concluded that this 

disclosure evidences a violation of any of the categories described in 

section 2302(b)(8).3 RID at 19. 

¶23 On review, the appellant summarily asserts that a disinterested person 

would see wrongdoing in the agency’s use of unlicensed psychologists. RPFR

File, Tab 1 at 7. However, the appellant has not identified any pertinent law, 

 

3

This conclusion is contrary to the administrative judge’s prior conclusion about the 

same disclosure. Compare ID at 11-12, with RID at 18-19. However, we vacated the 

entirety of the initial decision, so it was not improper to revisit this disclosure and come 

to a different conclusion. See RO, ¶¶ 13-14. 
12

rule, or regulation concerning the same. The only support she provides is a 

reference to evidence attached to her petition. RPFR File, Tab 1 at 7, 36-41, 

Tab 3 at 4-8. But, again, even if we were to consider that evidence, it consists of 

news articles, blog postings, and an advertisement for legal services, none of 

which appear relevant to the dispositive question of whether disclosure 6 was 

protected. Separately, the appellant argues that the agency failed to present any 

evidence, aside from hearing testimony, to confirm that licenses were not 

required for the agency’s psychologists. RPFR File, Tab 1 at 11. However, it 

was the appellant’s burden of proving that disclosure 6 was protected. Supra

¶¶ 6-7. Her conclusory assertion that the use of unlicensed psychologists 

amounts to wrongdoing does not satisfy that burden.

The appellant’s remaining arguments and evidence on review are unavailing.

¶24 We recognize that the appellant attached a significant amount of evidence to 

her petition, some of which is mentioned above. RPFR File, Tab 1 at 19 -41, 

Tab 2 at 4-35, Tab 3 at 4-11. To the extent that the appellant is attempting to 

introduce evidence that was not already included in the record below, she has 

failed to show that it is new and material. Therefore, we will not consider it 

further. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) 

(recognizing that, pursuant to 5 C.F.R. § 1201.115, the Board will not consider 

evidence submitted for the first time with the petition for review absent a showing 

that it was unavailable before the record was closed despite the party’s due 

diligence); see also Grassell v. Department of Transportation, 40 M.S.P.R. 554,

564 (1989) (explaining that, to constitute new and material evidence, the 

information contained in the documents, not just the documents themselves, must 

have been unavailable despite due diligence when the record closed); Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (recognizing that evidence 
13

is material when it is of sufficient weight to warrant an outcome different from 

that of the initial decision).4

¶25 The appellant also asserts that she lacked access to the hearing recording 

cited by the administrative judge throughout his decision. RPFR File, Tab 1 at 4. 

However, the appellant has failed to identify whether or where she noted the same 

below and requested access. See id. Moreover, even if she did lack access to the 

hearing recording, the appellant has not shown it was consequential, since she did 

not similarly allege that she lacked access to the hearing transcript. See HT. 

¶26 Next, we also recognize the appellant’s suggestions of bias on the part of 

the administrative judge. RPFR File, Tab 1 at 4, 10. However, we are not 

persuaded. See Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.

Cir. 2002) (stating that an administrative judge’s conduct during the course of a 

Board proceeding warrants a new adjudication only if the administrative judge’s 

comments or actions evidence “a deep-seated favoritism or antagonism that would 

make fair judgment impossible”) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)).

¶27 Finally, we note that the vast majority of the appellant’s petition is 

dedicated to arguments concerning whether her removal was justified, i.e.,

whether the agency proved by clear and convincing evidence that it would have 

taken the same action in the absence of her protected activity. E.g., RPFR File, 

Tab 1 at 5-14. However, we cannot address whether the agency met its burden of 

proof because the appellant failed to first meet hers. See supra ¶ 8 n.2. And

while the appellant’s petition also includes several other assertions of agency 

 

4

For the same reason, we deny the appellant’s motions to submit additional evidence 

obtained while awaiting the instant decision. See RPFR File, Tabs 6, 8. According to 

the appellant, that additional evidence consists of a new memorandum from a 

Congressional subcommittee regarding employee discipline at the Bureau of Prisons,

RPFR File, Tab 6 at 4, and a news article, RPFR File, Tab 8 at 4. However, the 

appellant has not given us any reason to believe that the information contained within is 

new and material.
14

wrongdoing, such as gender discrimination, inadequate discipline of inmates, 

staff shortages, and inappropriate relationships among employees, e.g., RPFR

File, Tab 1 at 14-15, none appear relevant to the limited matters exhausted before 

OSC and properly before us in this IRA appeal.5

NOTICE OF APPEAL RIGHTS6

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 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 choic es 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. 

 

5 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.

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.
15

(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 partic ular 

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 
16

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

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

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

this decision. 

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: 
17

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). 

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 

 

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. 
18

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