UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALE R. BORING,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

SF-0752-21-0520-I-2

DATE: April 22, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Dale R. Boring, Albany, Oregon, pro se.

Michelle M. Murray, Esquire, and Kate C. Brownlee, Esquire, Baltimore, 

Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

mitigated the appellant’s removal to a 14-day suspension. For the reasons

discussed below, we GRANT the agency's petition for review, REVERSE the

initial decision with respect to the charges, AFFIRM the initial decision with

respect to the appellant’s affirmative defenses, and FIND that the agency proved

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
both of its charges and that removal is within the tolerable limits of

reasonableness. 

BACKGROUND

The appellant is a GS-13 Criminal Investigator/Special Agent (SA) with the

Social Security Administration’s Office of Inspector General (OIG), in the Seattle

Field Division of the Office of Investigations (OI). Boring v. Social Security

Administration, MSPB Docket No. SF-0752-21-0520-I-1, Initial Appeal File

(IAF), Tab 7 at 14. Within OIG, the OI conducts investigations related to

allegations of fraud, waste, abuse, and mismanagement of programs and benefits

administered by Social Security Administration (SSA). IAF, Tab 8 at 5. OIG

maintains its own system of records to facilitate its investigations, separate from

SSA databases. Id. SSA and OIG also entered into a memorandum of

understanding dictating the limited circumstances in which OIG employees could

access, use, and disclose information in SSA databases to outside law

enforcement agencies.2 IAF, Tab 14 at 13-17. 

As relevant here, if an outside Federal, state, or local entity requests

information contained within SSA records, and there is potential fraud against an

SSA program or benefit, and OI has an interest in a potential investigation, then

OI is supposed to open an investigative file on the matter. Id. at 53-54.

However, if the requested information does not appear to involve any fraud

against an SSA program or benefit, or OI has no interest in pursuing an

investigation, then the information can be disclosed to the requesting agency only

upon receipt of a Law Enforcement Verification Request (LEVER). Id. at 51-54.

A LEVER has to be in writing and on official letterhead of the requesting agency,

be signed by a sworn law enforcement official, and contain the name and social

security number for review and a certification that the individual in question is

suspected of misusing a social security number or committing another crime

2

 The memorandum of understanding is incorporated into the OIG Special Agent

Handbook. IAF, Tab 14 at 48-54.

2
against a Social Security program. Id. at 50-52. A designated official within OI

must approve the LEVER; only then can an OIG employee access SSA records

and confirm whether the name and social security number matched. Id. at 52.

In September 2018, OIG conducted an office-wide audit of employee

queries into SSA databases made between October 2017 and July 2018 and

developed a list of such queries. IAF, Tab 8 at 35. The audit eliminated from the

list any queries associated with LEVERs, open allegations, or case numbers.

Hearing Transcript, dated Jan. 25, 2022 (HT 1), at 10-11 (testimony of the

Assistant Special Agent in Charge in the Office of Quality Assurance and

Professional Responsibility). For the queries that did not have an associated

allegation, case number, or LEVER, OIG asked the individuals who conducted

the query to provide a justification for the searches. Id. at 11-12 (testimony of

the Assistant Special Agent in Charge in the Office of Quality Assurance and

Professional Responsibility); IAF, Tab 10 at 59. The audit revealed that the

appellant conducted 870 queries that did not correspond to an allegation or case

number, and he was asked to provided justifications for a sample of those queries.

IAF, Tab 8 at 35. 

After reviewing the appellant’s justifications for his queries, the acting OI

Assistant Inspector General referred the appellant to the Office of Quality

Assurance and Professional Responsibility (OQAPR) for potential systems access

violations. Id. at 60. The resulting OQAPR investigation revealed that, between

January 1 and November 20, 2018, the appellant conducted 352 SSA record

queries for outside Federal, state, and local entities, none of which were

associated with a LEVER, and 335 of which were not associated with any

allegation or case number. Id. at 37-38. In his OQAPR interview, the appellant

admitted that he accessed and disclosed information at the request of outside

agencies in violation of OIG policies. IAF, Tab 10 at 19-25, Tab 22 at 6-7. 

Effective July 23, 2021, the agency removed the appellant based on

106 specifications of unauthorized access of SSA records and 197 specifications

3
of unauthorized disclosure from SSA records. IAF, Tab 7 at 14-40. The

appellant appealed his removal to the Board, IAF, Tab 1, and, after holding a

hearing, the administrative judge mitigated the removal to a 14-day suspension,

finding that the agency only proved 3 specifications of the second charge, 3 Boring

v. Social Security Administration, MSPB Docket No. SF-0752-21-0520-I-2,

Appeal File, Tab 2, Initial Decision (ID) at 24-46. The administrative judge

ordered the agency to afford the appellant interim relief in accordance with

5 U.S.C. § 7701(b)(2). ID at 61. 

The agency filed a petition for review, arguing, among other things, that

the appellant’s repeated admission to the charged misconduct was sufficient to

sustain both of the agency’s charges, and that the penalty of removal was within

the tolerable limits of reasonableness. Petition for Review (PFR) File, Tab 1 at 6-

25. The agency also attached to its petition for review a certificate of compliance

with the interim relief order and supporting documentation. Id. at 26-32. The

appellant filed a response to the agency’s petition for review, PFR File, Tab 3,

and a petition for enforcement challenging the agency’s compliance with the

interim relief order, PFR File, Tab 4 at 4-11. The agency replied to the

appellant’s response to the petition for review, and responded in opposition to the

petition for enforcement. PFR File, Tabs 5-6. The appellant replied to the

agency’s response to his petition for enforcement. PFR File, Tab 7. 

3

 Regarding the appellant’s affirmative defenses, the administrative judge found that the

appellant did not prove his claim of laches, finding that the 21⁄2 years between the

commencement of the appellant’s investigative leave and his removal did not raise a

presumption of prejudice, and there was no evidence that the appellant was hampered in

his ability to defend himself by the passage of time. ID at 48-50. She also found that

the appellant did not prove his claim of whistleblower retaliation because he did not

prove he made a protected disclosure when he disclosed to the deciding official that he

believed one of the investigators from OQAPR had an antagonism towards him. ID

at 50-54. The appellant has not challenged either of these findings on review, and we

discern no basis to disturb them. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,

106 (1997) (finding that the Board will not disturb an 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 and

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

4
DISCUSSION OF ARGUMENTS ON REVIEW

 The agency proved its charges by preponderant evidence.

As the agency argued, and the administrative judge acknowledged, the

appellant admitted to the charged conduct throughout the removal process and the

pendency of this appeal. ID at 4, 17; PFR File, Tab 1 at 6-9. Nevertheless, the

administrative judge concluded that the agency’s evidence did not support the

majority of its specifications, sustaining only three specifications of the agency’s

second charge. ID at 24-46.

It is well established that the agency may rely on an appellant’s admission

in support of its charge, and an appellant’s admission to a charge can suffice as

proof of the charge without additional proof from the agency. Cole v.

Department of the Air Force, 120 M.S.P.R. 640, ¶ 9 (2014); see Arena v. U.S.

Postal Service, 121 M.S.P.R. 125, ¶ 5 (2014) (finding that the appellant’s

stipulation to the first two specifications of a charge was sufficient to find that

the agency proved its charge by preponderant evidence), aff’d per curiam,

617 F. App’x 996 (Fed. Cir. 2015); see also Wells v. Department of Defense,

53 M.S.P.R. 637, 643-44 (1992) (finding that the appellant’s admission that he

engaged in alleged conduct is sufficient proof to sustain the charge). At no time

in this matter has the appellant challenged or denied the charged misconduct.

In fact, the appellant has consistently and affirmatively stated that he knew

he violated policy and has not challenged the agency’s charges or

specifications. IAF, Tab 16 at 25-26, 28-30, Tab 22 at 6-8, Hearing Transcript,

dated Jan. 28, 2022 (HT 4), at 16-17 (testimony of the appellant). In fact, at the

hearing, when asked if he denied accessing and disclosing identified in the

decision letter, the appellant responded, “I definitely do not now, nor have I

ever.” HT 4 at 16-17 (testimony of the appellant). 

Therefore, the appellant has repeatedly and expressly admitted to the

misconduct. IAF, Tab 16 at 25-26, 28-30, Tab 22 at 6-8, HT 4 at 16-17

(testimony of the appellant). This alone is sufficient to sustain the agency’s

5
charges. Accordingly, we reverse the administrative judge’s finding that the

agency only proved 3 specifications of the second charge and find that the agency

proved all 303 of its specifications and both charges by preponderant evidence.

Removal was within the tolerable bounds of reasonableness.

Generally, in an adverse action appeal taken under chapter 75, the agency

must prove its charge by preponderant evidence, establish a nexus between the

action and the efficiency of the service, and establish that the penalty imposed

was within the tolerable bounds of reasonableness. Thomas v. Department of the

Army, 2022 MSPB 35, ¶ 17. In this matter, we find that both of the agency’s

charges have been proven. The administrative judge determined that nexus

existed, and neither party has challenged that finding on petition for review. 4 ID

at 46-47. Therefore, we must now determine the propriety of the penalty.

When all of the agency’s charges are sustained, as they are here, the Board

will review the agency-imposed penalty only to determine if the agency

considered all relevant factors and exercised management discretion within the

tolerable limits of reasonableness. Thomas, 2022 MSPB 35, ¶ 19. In making this

determination, the Board must give due weight to the agency’s primary discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Id. The Board will modify or

mitigate an agency-imposed penalty only when it finds that the agency failed to

weigh the relevant factors, or the penalty clearly exceeds the bounds of

reasonableness. Id. 

The Board has articulated factors to be considered in determining the

propriety of a penalty, such as the nature and seriousness of the offense and its

relation to the employee’s duties, the employee’s past disciplinary record, the

4

 As the administrative judge noted, the nexus between the sustained misconduct and the

efficiency of the Federal service is established when the misconduct occurred at work.

Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). 

6
supervisor’s confidence in the employee’s ability to perform his assigned duties,

the consistency of the penalty with the agency’s table of penalties, and the

consistency of the penalty with those imposed on other employees for the same or

similar offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981). It is well established that the most important factor in assessing whether

the agency’s chosen penalty is within the tolerable bounds of reasonableness is

the nature and seriousness of the misconduct and its relation to the employees’

duties, position, and responsibilities. Thomas, 2022 MSPB 35, ¶ 20; see Downey

v. Department of Veterans Affairs, 119 M.S.P.R. 302, ¶ 9 (2013).

We agree with the deciding official’s assessment of the Douglas factors

and find that the penalty of removal does not exceed the tolerable limits of

reasonableness. IAF, Tab 7 at 33-37; HT 1 at 86-89 (testimony of the deciding

official). The appellant’s actions were repeated, intentional, and vast in scope.

From January 1 through November 20, 2018, the appellant conducted 352 SSA

database queries in violation of OIG policy. IAF, Tab 8 at 37-39. He did so

despite annually acknowledging that he had read and understood OIG’s systems

access and disclosure policies, which set forth the narrow circumstances

under which an OIG employee could access and disclose SSA information.

Id. at 95-99; HT 4 at 7 (testimony of the appellant). Such policies specifically

stated “[d]o not access SSA records and/or release any SSA information unless

you are absolutely certain that you are legally authorized to do so,” and set forth

the minimum required administrative penalties for systems access offenses,

including a warning that such offenses could lead to criminal penalties. IAF,

Tab 14 at 48 (emphasis in original). Furthermore, the appellant received a 2-day

suspension in 2013 for disclosing information from SSA records and tax return

information to unauthorized persons. IAF, Tab 8 at 69-74. His previous

suspension thus served as a warning that his conduct violated agency policy.

Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627, ¶ 25 (2007) (stating

7
that prior discipline can be considered as notice that the appellant had been

warned about the type of misconduct involved).

The appellant has repeatedly admitted to knowingly violating OIG policy

and has expressed little remorse for his actions, claiming that OIG policies were

“unable to be followed,” and that it was “impossible” to do his job and remain

within OIG’s access and disclosure policies. HT 4 at 6-7, 65, 79-81 (testimony of

the appellant). He further claimed that, although he agreed to abide by OIG

policies, the Inspector General Act trumped the policies when they contradicted

each other because, per the Inspector General Act, all of SSA’s data is also OIG’s

data. Id. at 6-7, 73-74 (testimony of the appellant). The appellant also justified

his actions by asserting that his queries were in furtherance of OIG’s mission, and

that any individual who used a name, date of birth, and social security number

had a connection to the Social Security Act, and, therefore, could be subjected to

an OIG investigation. Id. at 52-53 (testimony of the appellant). 

Such testimony leaves us with the impression that the appellant not only

has a blatant disregard for OIG’s policies but will also continue to violate policies

that he believes to be “unworkable.” As the appellant is a law enforcement

officer, we find this sentiment to be particularly troubling. It is well settled that

the agency has a right to expect a higher standard of conduct from law

enforcement officers because they are entrusted with a position of great trust and

responsibility. See Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 8

(2001) (stating that a higher standard of conduct and degree of trust are required

of an incumbent of a position with law enforcement duties); Fischer v.

Department of the Treasury, 69 M.S.P.R. 614, 619 (1996) (noting that law

enforcement officials are held to a higher standard of conduct than other

employees); Hilderbrand v. Department of Justice, 22 M.S.P.R. 233, 236 (1984)

(same). The appellant’s refusal to operate within the confines of OIG’s policies

is antithetical to his position as a law enforcement officer as he is tasked with

upholding and enforcing the rule of law regardless of his opinion of the law.

8
See Hilderbrand, 22 M.S.P.R. 233, 236 (explaining that a law enforcement

official has a general responsibility to uphold the law). 

However, we acknowledge that the appellant has presented evidence that

suggests that his actions may have been encouraged or condoned by the agency.

For instance, the appellant’s former Special Agent in Charge (SAC) emphasized

that OIG should be an active and involved partner in Federal, state, and local law

enforcement, and that OIG should be collaborating and sharing information with

other agencies. HT 1 at 150-52, 157-62 (testimony of former OIG SAC). Also,

the appellant, as a representative for the agency, was part of a Social Services

Fraud Working Group, which was a group of fraud investigators from Federal,

state, and local agencies that would meet periodically and share information

regarding cases. Hearing Transcript, dated Jan. 27, 2022 (HT 3) at 94-103

(testimony of the appellant). In fact, many of the appellant’s disclosures were

made to members of this working group. Id. at 96 (testimony of the appellant). 

Additionally, there is testimony from other SAs in the appellant’s division

echoing the appellant’s sentiment that OIG’s access and disclosure policies did

not reflect the reality of working as a criminal investigator, that many SAs would

work around official policy to perform their duties, and that the policies were not

enforced prior to September 2018. HT 1 at 201-203, 206-11, 215 (testimony of

former OIG SA T.S.); Hearing Transcript, dated Jan. 26, 2022 (HT 2) at 16-25

(testimony of former OIG SA S.W.), 112-21 (testimony of OIG SA D.S.); HT 3

at 5-10 (testimony of former OIG SA R.P.). However, when reviewing the

testimony of the appellant’s co-workers, it appears that they did not freely share

information gathered from SSA records. HT 1 at 230-31 (testimony of former

OIG SA T.S.); HT 2 at 35-37 (testimony of former OIG SA S.W.), 133-35

(testimony of OIG SA D.S.); HT 3 at 19-20 (testimony of former OIG SA R.P.).

Instead, his co-workers seem to agree that, at the very least, the requested

information needed to have some connection to a matter that OIG may be

interested in for investigative purposes. HT 1 at 230-31 (testimony of former

9
OIG SA T.S.); HT 2 at 35-37 (testimony of former OIG SA S.W.), 133-35

(testimony of OIG SA D.S.); HT 3 at 19-20 (testimony of former OIG SA R.P.). 

In contrast, the appellant believed that OIG should be focused on doing

“the right thing,” instead of “doing the thing right,” and share whatever

information it had with other law enforcement agencies because OIG was “in a

unique position to be behind the scenes and helping our [law enforcement]

partners find and stop” “monsters who steal and rape and kill and terrorize and

torture.” IAF, Tab 10 at 62. Therefore, the appellant freely accessed and

disclosed information with other agencies, regardless of whether an SSA program

or benefit was implicated. For instance, when an investigator with the Alaska

Department of Revenue asked if the appellant could confirm the death of an

individual, the appellant not only confirmed the death, but also provided

personally identifiable information for the individual’s wife, mother, children,

and cousin. IAF, Tab 12 at 21-22. Similarly, when an Alaska State Trooper

asked the appellant if he could provide a social security number of a homicide

suspect, the appellant also provided the suspect’s date of birth, the names of his

father and mother, and confirmed that there were no SSA benefits attached to the

individual, or record of employment. IAF, Tab 13 at 33. 

Accordingly, even though there is evidence that other OIG SAs may have

operated on the fringes of OIG’s policies, the appellant seems to have operated

entirely outside of the bounds of those policies. This is further supported by the

fact that other OIG SAs were able to provide an accepted justification for their

queries, even though they operated under the same policies as the appellant. HT

2 at 54, 58-59, 73-74 (testimony of former OIG SA S.W.), 136-37, 141 (testimony

of OIG SA D.S.); HT 3 at 14-15 (testimony of former OIG SA R.P.). Therefore,

while we remain unconvinced that the agency condoned the appellant’s actions, to

the extent that the agency did, we do not find this evidence sufficient to justify

mitigation. See Herrera-Martinez v. Social Security Administration, 84 M.S.P.R.

426, ¶ 16 (1999) (noting that, although condonation may be a mitigating factor,

10
the Board has not always found that condonation warrants mitigation); see also

Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶¶ 18-19 (2010)

(explaining that the Board considers condonation as a potential mitigating factor

in the penalty analysis). 

We considered the relevant factors that weigh in favor of the appellant,

including almost 20 years of service with the agency at the time of the

misconduct at issue in this appeal, his successful performance and performance

awards, and the numerous letters and testimony in support of the appellant’s

abilities as a law enforcement officer. IAF, Tab 7 at 35, 137-64; see generally

HT 1 146-195 (testimony of former OIG SAC), 196-244 (testimony of former

OIG SA T.S.); HT 2 at 4-102 (testimony of former OIG SA S.W), 102-169

(testimony of OIG SA D.S.), 170-201 (testimony of Department of Homeland

Security SA), 202-244 (testimony of former OIG Resident Agent in Charge);

HT 3 at 3-28 (testimony of former OIG SA R.P), 33-52 (testimony of Alaska

Department of Revenue Chief Investigator), 53-87 (testimony of Alaska

Department of Revenue Investigator). While significant, these factors simply do

not outweigh the evidence supporting removal. Therefore, we reverse the

administrative judge’s findings mitigating the action and sustain the agency’s

removal action. 

The agency is in compliance with the administrative judge’s interim relief order.

The agency’s petition for review was accompanied by a certificate of

compliance, as well as three Standard Form 50s reflecting the cancellation of the

appellant’s removal, the imposition of a 14-day suspension, and his return to duty

at the end of the suspension, as well as a notice for the appellant to return to work

following the initial decision. 5 PFR File, Tab 1 at 26-32. The return to work

5

 Although the interim relief order did not require the agency to cancel the removal

action, the Board has found that, when an agency has in good faith inadvertently

exceeded the requirements of an order for interim relief, it will not dismiss its petition

for review. Moscato v. Department of Education, 72 M.S.P.R. 266, 270 (1996), aff'd,

155 F.3d 568 (Fed. Cir. 1998) (Table).

11
notice stated that, while the appellant would return as a criminal investigator, i.e.,

an 1811 series position, it would be unduly disruptive to return him to his

previous duties due to “significant concerns” regarding the appellant’s ability to

follow agency policy and safeguard sensitive information. Id. at 31. Therefore,

the agency placed the appellant in a remote position in the Administrative and

Training Division and explained that, among other things, he would not be

assigned enforcement or investigative work during the pendency of the agency’s

petition for review. Id. The appellant has filed a petition for enforcement

challenging the agency’s compliance certification, arguing that it did not provide

him with status quo ante relief because the agency did not return him to his

previous position and failed to restore the leave he had accrued at the time of his

removal. PFR File, Tab 4 at 4-11. 

The Board will not entertain a petition for enforcement of an interim relief

order before a final decision is issued; therefore, we treat the appellant’s petition

as a motion to dismiss the agency’s petition for review for failure to provide

interim relief. Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 7.

When, as here, the appellant is the prevailing party in the initial decision and the

administrative judge orders interim relief, a petition for review filed by the

agency must be accompanied by a certification that the agency has complied with

the interim relief order either by providing the interim relief ordered, or by

making a determination that returning the appellant to the place of employment

would cause undue disruption to the work environment. Id., ¶ 6. If an agency

makes a determination that returning an appellant to his previous position as

interim relief would pose an undue disruption, it must nonetheless return the

employee to a pay status pending the outcome of its petition for review, and

provide “pay, compensation, and all other benefits as terms and conditions of

employment.” Id., ¶ 7; 5 U.S.C. § 7701(b)(2)(B). The Board’s review of interim

relief is limited to determining whether the agency actually made an undue

disruption determination and whether the employee has received appropriate pay

12
and benefits—it cannot review the merits of the agency’s undue disruptive

determination. Johnson, 2023 MSPB 9, ¶ 7; see King v. Jerome, 42 F.3d 1371,

1375 (Fed. Cir. 1994). 

Here, it is undisputed that the agency returned the appellant to a GS-13

Criminal Investigator/SA position and provided him with pay commensurate with

that position but reassigned the appellant to a different division after making an

undue disruption determination. PFR File, Tab 1 at 26-32. Such relief is

consistent with the agency’s interim relief requirements. See Costin v.

Department of Health & Human Services, 72 M.S.P.R. 525, 533 (1996)

(confirming that an agency may, as part of an undue disruption determination,

detail, assign, and transfer an employee to a different duty location); see also

Nadolski v. Merit Systems Protection Board, 105 F.3d 642, 645 (Fed. Cir. 1997)

(explaining that the entitlement to interim relief under 5 U.S.C. § 7701(b)(2) does

not prevent an agency from imposing additional terms or conditions on the

employment, such as a change of station or change in duties). As for the

appellant’s arguments that the agency did not provide him with status quo ante

relief, interim relief is not intended as a status quo ante remedy. See Parbs v.

U.S. Postal Service, 107 M.S.P.R. 559, ¶ 6 (2007), aff’d, 301 F. App’x. 923 (Fed.

Cir. 2008). Such full relief is only appropriate after a final Board decision.

Therefore, we find that the agency complied with the interim relief order.

NOTICE OF APPEAL RIGHTS6

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

Boards 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

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
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: 

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. 

14
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. 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

15
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

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

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

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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. 

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

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

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

132 Stat. 1510. 

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

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

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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