Appealing Final Agency Decision

To appeal the Final Agency Decision (FAD) to the EEOC Office of Federal Operations (OFO), you need to send the EEOC Form 573, Notice of Appeal/Petition (which should be enclosed with the Final Agency Decision or the judge's Order, if applicable) within 30 calendar days of your receipt of the Final Agency Decision (FAD).

Final Agency Decision (FAD) and, if applicable, the judge's decision, must accompany your appeal form. The appeal form must be also copied to Agency's EEO Director.

➤ The appeal request form (EEOC Form 573) (together with supporting brief) should be sent to:

U.S. Equal Employment Opportunity Commission
Office of Federal Operations
PO Box 77960
Washington, DC  20013

Appeals may be hand delivered or FedEx'ed to:

Robert J. Barnhart, Director,
Compliance and Control Division
Office of Federal Operations
U.S. Equal Employment Opportunity Commission
One NOMA Station
131 M Street, NE, Suite 5SW12G
Washington, D.C. 20507-0004

You can fax the appeal (and the supporting brief if less than 10 pages) to: 202-663-7022

VOICE No. - 202-663-4599
FAX No. - 202-663-7022
TTY No. - 202-663-4593

A brief supporting your appeal may be submitted later and separately but within 30 days of your appeal (unless your request for extension is granted).  See below for more on the appeal brief and on the request for extension.

Exception:  If you are appealing Merit Systems Protection Board (MSPB) decision (on the issues of discrimination only), you must submit the appeal form with the supporting brief.  No extension may be granted.  

You may also appeal the Final Agency Decision which is rendered based on an arbitration decision involving discrimination claims.

Within a few days (or sometimes more than 25 days) of filing an appeal, you will receive an acknowledgment letter from OFO specifying the (appeal) file date and the OFO appeal/file number.  All submissions to OFO thereafter must contain the OFO appeal/file number.   

The file date is the date you mailed or faxed your appeal (Form 573).

In lieu of appealing to OFO, you can file a complaint to appropriate US District Court in your area within 90 days of receipt of Final Agency Decision.

➤Appeal Brief

Within 30 days from the date of filing the appeal (Form 573), you may send an appeal brief in support of your appeal to OFO at the address indicated above.  A copy of the appeal brief should also be sent to the Director of the Agency's EEO office.  (Exception:  If you are appealing Merit Systems Protection Board (MSPB) decision (on the issues of discrimination only), you must submit the appeal form together with the supporting brief. No extension may be granted for filing the brief separately later.  No separate brief (filed after submitting the appeal) may be accepted. 

The 30 day deadline within which to file a brief (after sending the appeal form 573) is usually extended if you
request an extension by sending an email to: OFO_extensions@eeoc.gov.  

The appeal brief should contain the facts omitted or misrepresented, attachments of relevant or omitted evidence, and, if not already submitted with the appeal, a copy of the Final Agency Decision and the Judge's Decision you are appealing. You can argue any procedural flaws on the part of the administrative judge (if you had a hearing) or by the Agency EEO investigative staff and/or omission by Agency of evidence you presented earlier during the investigation period.  

In the Conclusion section in the brief, you may ask for a determination against Agency for discrimination/retaliation (if applicable) and for appropriate remedy.  You may also ask for the case to be remanded back to the Agency for further/proper investigation or may ask (if you had a hearing) to re-open the hearing.

You can also report any valid and relevant complaint (supported by evidence) against the EEOC administrative judge or about the EEO Director's or staff's mishandling of your case.

➤ Agency Response

Agency must file its response to your appeal brief within 30 days of receipt.  A copy of Agency's response must be sent to you as well.  You can reply to Agency's Response within short period of time for the OFO to consider.

If the EEOC judge ruled in your favor and ordered full or appropriate remedy, Agency may issue the Final Agency Decision in deviation of the ruling and would appeal the judge's decision to OFO.  Agency has 30 days to appeal from the date of Final Agency Decision; and 30 days thereafter to file a support brief, which can be extended for additional 30 days.  You have 30 days within which to respond to Agency's appeal brief or 60 days from Agency's appeal if no brief follows Agency's appeal.

➤ OFO Decision

The OFO decision in response to your appeal and Agency's response (if any) may take several months or even up to two years or more sometimes.  It has been said that OFO triages the case for quick decision or for longer decision.  

If your appeal is successful, OFO may remand the case back to the Agency EEO office for further investigation, for EEOC hearing, or for resolution with ordering of the appropriate remedy.  Otherwise, OFO will uphold the Final Agency Decision.

Within 90 days of receipt of OFO's decision, you may appeal it by filing a civil lawsuit at the federal district court. If no decision is rendered by OFO 180 days after your appeal, you may also file a civil action at the appropriate federal district court.

For questions, you can call OFO and asked for the Attorney of the Day: 202-663-4519 or 4599.

➤ OFO Web Search: All OFO decisions can be looked up by name, case no, type of discrimination, etc. at:

OFO lacks enforcement power, as EEOC fails to follow Administrative Procedures Act (APA).  For example, if OFO upholds AJ's decision in your favor and AJ's Order on the remedy awards, Agency may still refuse to comply with the Order with no adverse consequences whatsoever; because OFO lacks enforcement power.  In rare cases, Agency will scorn at AJ's decision and refuse compliance ordered by AJ or OFO (upon appeal).  OFO merely monitors a voluntary compliance on the part of the Agency for remedies OFO ordered for the complainant.  Such is the reality of the federal EEO at the highest and ultimate adjudicative level - at OFO.

➤ Request for Reconsideration

The final step within the federal EEO complaint process is the step to exercise your right to request a Reconsideration by OFO (at the same address specified above), if and after OFO decides to uphold the Final Agency Decision (FAD) against you after your appeal.

The request for reconsideration must accompany any brief at the time of submitting the request.  The opposing party has 20 days (from the date of service, not receipt) to reply.

The Reconsideration serves a limited purpose, however.  OFO will only reconsider if there were misinterpretation of material facts and misapplication of law.  No factual dispute already adjudicated will be reconsidered.

In lieu of appealing to Office of Federal Operations (OFO), you can file a civil law suit in a US District Court within the 90 days of receipt of the Final Agency Decision (FAD). 

When filing at the US District Court, you must identify the appropriate department or agency head as the defendant, as well as his/her official title.  You will need an attorney to file at the civil courts or you may represent yourself (pro se).

Note on attorneys:  Attorney fees may range anywhere between $10,000 to $100,000 or more.  Their hourly rates may vary between $175 to $675 per hour, depending on the location in the country.  They may charge for every email issued (even with one sentence) and every phone call you make.   Many attorneys may settle or drop out before going to a trial after receiving the fee, contrary to what they may say initially.  The amount of fees the attorneys charge does not always correlate with the quality of services they offer.  Be an alert consumer/client. Attorney misconduct or malpractice may be reported to attorney discipline board or attorney ethics board in your state.
 

➤  Free Court-Appointed Attorneys

Title VII of the Civil Rights Act of 1964, § 706 (f)(1)(B), 42 U.S.C. § 2000e-5(f)(1)(B), provides:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, cost, or security.

If you qualify financially, the U.S. District Court may appoint a free attorney for you.  Consult with the Court Clerk when you file a law suit at a U.S. District Court.

180 days after filing a formal complaint in the federal EEO process, you may file a law suit at your U.S. District Court, in lieu of requesting an administrative EEOC hearing; or within 90 days of receiving Final Agency Decision or OFO appeal decision.  

Disclaimer: All information contained in this page is subject to change and updates.  EEO 21, LLC, is not responsible for any errors or misrepresentation.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.