Dionne Perrault v. Department of Agriculture ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIONNE PERRAULT, DOCKET NUMBER
Appellant, DA-0752-15-0522-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: February 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Terrence J. Johns, New Orleans, Louisiana, for the appellant.
Sandy S. Francois, New Orleans, Louisiana, 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
dismissed her appeal of an alleged demotion for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decis ion is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We AFFIRM the initial decision as MODIFIED by this Final Order to
supplement the administrative judge’s jurisdictional analysis .
BACKGROUND
¶2 Effective June 29, 2014, the appellant was promoted/reassigned from a
GS-0525-07 Accounting Technician position to a GS-2210-07 Information
Technology Specialist position with a higher adjusted salary due to a special rate
of pay under 5 U.S.C. § 5305. Initial Appeal File (IAF), Tab 8 at 11-12, Tab 30
at 4. 2 The Standard Form 50 (SF-50) documenting the promotion cited 5 C.F.R.
§ 335.102 3 and the agency’s Career Enhancement Program (CEP) as the legal
authority for the agency’s action. IAF, Tab 8 at 12.
2
The record contains documentation describing the June 29, 2014 personnel action as a
reassignment, but the parties also have referred to the agency’s action as a promotion.
IAF, Tab 2 at 7, Tab 8 at 12, Tab 31 at 4. For purposes of this decision, we
subsequently refer to the action as a promotion, but, as we explain infra ¶¶ 11-15, we
find that the appellant has not made a nonfrivolous allegation of a reduction in grade
and that it is unnecessary to decide whether she made a nonfrivolous allegation of a
reduction in pay.
3
Pursuant to 5 C.F.R. § 335.102(f), agencies can “[m]ake time-limited promotions to
fill temporary positions . . . for a specified period of not more than 5 years, unless [the
Office of Personnel Management] authorizes the agency to make and/or extend
time-limited promotions for a longer period.” The regulation also provides that “the
employee may be returned at any time to the position from which temporarily promoted,
3
¶3 CEP positions are entry-level positions in the Federal Government
advertised at the GS-5 and/or GS-7 levels with targets at the GS-11 or GS-12
grade levels. Id. at 10. According to the agency’s CEP Policy, the 52-week
program gives employees an opportunity to develop and grow within the agency,
when they otherwise would not have been eligible for promotion. Id. at 9-10.
CEP participants are temporarily assigned to the position with a formalized
training plan, and they are expected to satisfactorily complete the requirements of
the CEP within the first 52 weeks in the program or they will be returned to their
position of record. Id.¶4 The job announcement for the appellant’s CEP position informed applicants
that initial placement is temporary and, if the selected employee does not
satisfactorily complete the program requirements within the first 52 weeks, the
employee “will be returned to the position of record if available, or to a position
equivalent in grade and salary to the position held before selection to the
program.” IAF, Tab 30 at 6-7. The job announcement further stated that,
although employees in a position with further promotion potential may be
noncompetitively promoted if they successfully complete the program
requirements and if recommended by management, “promotion is neither implied
nor guaranteed.” Id. at 6.
¶5 In a June 15, 2015 letter, the agency informed the appellant that her
temporary placement in the CEP position was being terminated based on
management’s determination that she did not successfully complete the program
requirements. IAF, Tab 7 at 8. Effective June 28, 2015, the agency returned the
appellant to her position of record as a GS-0525-07 Accounting Technician. IAF,
Tab 8 at 13 (SF-50 citing 5 C.F.R. § 335.102 as the legal authority for the action).
¶6 The appellant filed a Board appeal and requested a hearing, alleging that
she was illegally demoted when the agency reassigned her to her “previously held
or to a different position of equivalent grade and pay, and the return is not subject to the
procedures in parts 351, 432, 752, or 771 of this chapter.” 5 C.F.R. § 335.102(f)(1).
4
grade, title and pay” in the GS-0525 series instead of promoting her to a GS-
2210-09 position after she completed the 52-week CEP training program and
received “a fully successful performance rating within the first year .” IAF, Tab 2
at 3, 5, 7, Tab 29 at 3. The appellant alleged that the agency was required to
promote her to the GS-9 position on June 29, 2015, following the 1-year
anniversary of her CEP appointment and, after that date, the agency could not
simply return her to her previously held position. IAF, Tab 28 at 3-4, Tab 32
at 3-4. The appellant further alleged that, on June 30, 2015, “after the 52 week
deadline had passed,” the human resources office received management’s request
to reassign her to her previous position, retroactive to June 28, 2015. IAF,
Tab 29 at 3-4. The appellant, an African-American woman, also raised a claim of
discrimination based on her race, color, and sex. IAF, Tab 32 at 3-4.
¶7 The administrative judge informed the appellant that the Board may not
have jurisdiction over the action she was appealing, explained what is required to
establish the Board’s jurisdiction over a reduction in grade or pay, and ordered
the appellant to file evidence and argument that her appeal was within the
Board’s jurisdiction. IAF, Tab 3 at 2, Tab 14 at 1-2, Tab 25 at 1-3. The appellant
responded, alleging that the agency was required to promote her to a GS-9
position on June 29, 2015, after she successfully completed 52 weeks of training
in her CEP position and that her reassignment effective June 28, 2015, was an
illegal demotion. IAF, Tab 15 at 3-4. The agency moved to dismiss the appeal
for lack of jurisdiction, asserting, in pertinent part, that neither the termination of
her temporary promotion nor her nonselection for a permanent promotion was an
adverse action appealable to the Board under 5 U.S.C. chapter 75. IAF,
Tabs 16-18, 24, 26-27, 31. Based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant had failed
to make a nonfrivolous allegation of jurisdiction over her app eal. IAF, Tab 33,
Initial Decision (ID) at 6-7.
5
¶8 In reaching her decision, the administrative judge explained that, by
regulation, an action that terminates a temporary promotion and returns the
employee to the position from which temporarily promoted is not an appealable
adverse action under 5 U.S.C. chapter 75. ID at 6 (citing 5 C.F.R. §§ 335.102(f),
752.401(b)(12)). She found that the appellant failed to make a nonfrivolous
allegation that the action she was challenging was appealable, notwithstanding
these regulations. ID at 6-7. The administrative judge found that the appellant
made only pro forma allegations that she successfully completed her 52 -week
CEP training period. Id. She further concluded that the appellant failed to make
a nonfrivolous allegation that the CEP gave her greater appeal rights than any
other temporarily promoted employee. ID at 7. The administrative judge also
found that, absent an otherwise appealable action, the appellant’s allegations of
prohibited discrimination were not an independent source of Board jurisdiction.
Id.¶9 The appellant has filed a petition for review of the initial decision,
generally repeating her arguments that the Board can review her demotion appeal
because the agency was required to give her a permanent promotion upon her
successful completion of the 52-week training in her CEP position. Petition for
Review (PFR) File, Tab 1 at 3-4. The agency has responded in opposition to her
petition for review. PFR File, Tab 2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant is entitled to a
jurisdictional hearing only if she makes a nonfrivolous allegation of Board
jurisdiction. Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14
(2013). A nonfrivolous allegation of Board jurisdiction is an allegation of fact
that, if proven, could establish that the Board has jurisdiction over the matter at
6
issue. Id.; 5 C.F.R. § 1201.4(s). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling her to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). For the
following reasons, we find that the appellant has failed to nonfrivolously allege
any facts that, if proven, could establish that the Board has jurisdiction over her
appeal.
The appellant has not alleged facts that, if proven, could establish that the agency
subjected to her to an appealable reduction in grade.
¶11 The Board has jurisdiction over an appeal of a reduction in a Federal
employee’s grade or pay. See 5 U.S.C. §§ 7512(3)-(4), 7513(d). In this context,
“grade” means a level of classification under a position classification system , and
“pay” is defined as the rate of basic pay fixed by law or administrative action for
the position held by an employee. 5 U.S.C. § 7511(a)(3)-(4); 5 C.F.R. § 752.402.
Chapter 75’s implementing regulations further explain that “pay” means the “rate
of pay before any deductions and exclusive of additional pay of any kind.” Adde
v. Department of Health and Human Services, 110 M.S.P.R. 689, ¶ 10 (2009);
5 C.F.R. § 752.402. Ordinarily, a reassignment without loss of grade or pay is
not appealable to the Board as an adverse action under 5 U.S.C. chapter 75. E.g.,
Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7 (2001). Thus, in a
case like this, there is ordinarily a threshold jurisdicti onal issue of whether the
appellant has suffered a reduction in grade or pay as those terms are defined for
purposes of chapter 75.
¶12 The undisputed documentary evidence shows that the appellant’s CEP
position and the Accounting Technician position shared the same grade but the
7
pay was greater in the CEP position due to a special rate of pay under 5 U.S.C.
§ 5305. IAF, Tab 8 at 11-13. On review, the appellant appears to argue that the
CEP position held greater promotion potential than the Accounting Technician
position, which could be construed as an argument that she was reduced in grade.
PFR File, Tab 1 at 3-4. We find this argument unavailing because promotion
potential is not a basis for distinguishing between positions of equal grade for
purposes of determining whether an appealable reduction in grade has occurred.
Burrell v. Environmental Protection Agency, 81 M.S.P.R. 427, ¶ 12 (1999); Lange
v. Department of Transportation, 1 M.S.P.R. 700, 701-03 (1980).
¶13 To the extent that the appellant claims that she suffered a reduction in grade
because the agency should have promoted her to a GS-9 position after 1 year of
successful performance in the CEP position, we find that she has failed to make a
nonfrivolous allegation of an action within the Board’s jurisdiction. The denial
of a promotion is not an adverse action that is generally appealable to the Board.
See, e.g., Walters v. U.S. Postal Service, 65 M.S.P.R. 115, 118 (1994). The
appellant did not make any allegations that could implicate any of the exceptions
to the general rule. See generally 5 C.F.R. parts 1208, 1209 (concerning claims
pursuant to the Veterans Employment Opportunities Act of 1998, the Uniformed
Services Employment and Reemployment Rights Act of 1994, and the
Whistleblower Protection Act, as amended). Further, absent an allegation that a
relevant position was reclassified, she has not alleged facts that, if proven, could
establish jurisdiction on a “constructive demotion” theory. See, e.g.,
Marcheggianni, 90 M.S.P.R. 212, ¶¶ 7-10.
¶14 Accordingly, we find that the appellant has not made a nonfrivolous
allegation that she was subjected to an appealable reduction in grade.
8
A reduction in grade or pay associated with the termination of an employee’s
temporary promotion and return to her former position is not an appealable
adverse action under 5 U.S.C. chapter 75.
¶15 The appellant may have experienced a reduction in “pay” as that term is
defined in 5 U.S.C. § 7511(a)(4) and 5 C.F.R. § 752.402. However, we find that
there is an issue as to whether the special rate of pay under 5 U.S.C. § 5305associated with the CEP position should be considered in determining whether the
appellant has experienced a reduction in “pay” under applicable definitions. IAF,
Tab 8 at 12, Tab 14 at 1-2; see Adde, 110 M.S.P.R. 689, ¶¶ 10-14. We do not
reach this issue because, even assuming the appellant experienced a reduction in
grade and/or pay, we agree with the administrative judge that the Board lacks
jurisdiction to review the type of action challenged here for the following other
reasons. ID at 6-7.
¶16 Under regulations implementing chapter 75, the adverse action appeal
process before the Board does not apply when an agency “terminates a temporary
or term promotion and returns the employee to the position from which
temporarily promoted, or to a different position of equivalent grade and pay, if
the agency informed the employee that it was to be of limited durati on.” 5 C.F.R.
§ 752.401(b)(12). Further, 5 C.F.R. § 335.102(f)(1) similarly provides that an
employee serving a time-limited promotion “may be returned at any time to the
position from which temporarily promoted, or to a different position of equivalent
grade and pay, and the return is not subject to [certain procedures],” including, as
particularly relevant here, the procedures governing adverse actions set forth in
5 C.F.R., part 752, subpart D. The Board and the U.S. Court of Appeals for the
Federal Circuit have long followed the implementing regulations excluding such
actions from the adverse action appeal process. See, e.g., Mosley v. Department
of the Navy, 31 M.S.P.R. 689, 690-91 (1986); Phipps v. Department of Health and
9
Human Services, 767 F.2d 895, 897 (Fed. Cir. 1985). 4 For the following reasons,
we agree with the administrative judge’s conclusion that the exclusion in 5 C.F.R.
§ 752.401(b)(12) applies here.
¶17 We find that the appellant has failed to make a nonfrivolous allegation that
her promotion through the CEP was anything other than temporary. We find
nothing in the terms of the agency’s CEP, vacancy announcement, or appointing
documentation that suggests that her temporary promotion might become
permanent absent further explicit agency action. This is consistent with the
general rule that the promotion of a Federal employee cannot occur unless an
official with the appropriate authority took, authorized, or ratified an action that
could reasonably be said to have resulted in an appointment or promotion. See
Hoever v. Department of Navy, 115 M.S.P.R. 487, ¶ 8 (2011). The appellant has
not made a nonfrivolous allegation that any such act occurred here.
¶18 We have considered the appellant’s theory that she should be deemed to
have been promoted because she successfully completed 52 weeks in the CEP
position; however, we find that she has not identified any legal authority or
alleged any facts that, if proven, could establish that she was entitled a promotion
under these circumstances absent further express action from the agency. The
appellant relies in particular on the following excerpt from the agency’s CEP
Policy:
Positions are initially filled as temporary, with the option to make
the selection permanent within the first 12 months (52 weeks) of
program participation. The selection is made permanent and the
employee non-competitively promoted to the next grade in the career
ladder when:
1. Time in grade and specialized experience requirement s have
been met;
4
Although the implementing regulations have undergone revision since these cases
were decided, we find that the fundamental principle has remained constant and any
differences in the regulations are immaterial to the outcome of this appeal.
10
2. Training requirements for the current grade level have been
successfully completed; and
3. Performance is at a fully successful level or higher at the
current grade level as documented by quarterly performance
between the employee and supervisor.
IAF, Tab 30 at 9-10. In the appellant’s view, she satisfied all of these criteria,
and the agency could no longer deny her a promotion after she occupied the CEP
position for more than 52 weeks. E.g., IAF, Tab 15 at 3, Tab 29 at 3; PFR File,
Tab 1 at 3-4. We find that the appellant has failed to make a nonfrivolous
allegation that the agency was obligated to promote her after she occupied the
CEP position for 52 weeks. On its face, the agency’s CEP Policy does not
support the appellant’s theory; instead, it reinforces the normal rule that the
decision to promote requires action by agency management. See Hoever,
115 M.S.P.R. 487, ¶ 8. For instance, the CEP Policy refers to management’s
“option” to make the selection permanent during the first 52 weeks of
participation. IAF, Tab 30 at 9. It further provides for permanent noncompetitive
promotion only after the employee “successfully” completes training
requirements and her supervisor documents her performance at a “f ully successful
level or higher,” thus anticipating assessment by management. Id. at 9-10.
Accordingly, we find that the appellant has not alleged any facts that, if proven,
could establish that her promotion through the CEP was anything other than
temporary. ID at 6-7; see Phipps, 767 F.2d at 896-97 (rejecting an employee’s
argument, concerning a prior version of 5 C.F.R. § 335.102(f), that “the mere
lapse of time” created new rights to a position to which an employee had been
temporarily promoted).
¶19 We further find that the undisputed record shows that the agency informed
the appellant that her promotion to the CEP position was to be of limited
duration. The vacancy announcement created no express or implied right to
continued employment in her temporary position. IAF, Tab 30 at 6. The job
announcement specified that CEP participants receive temporary position
11
assignments and that “promotion is neither implied nor guaranteed.” Id. We find
that the appellant has failed to make a nonfrivolous allegation that 5 C.F.R.
§ 752.401(b)(12) does not apply because of a lack of notice that the promotion to
the CEP position was to be of limited duration.
¶20 It is also undisputed that the agency returned the appellant to a GS-7
Accounting Technician position, which was the position and grade she occupied
prior to her temporary promotion through the CEP. IAF, Tab 2 at 7, Tab 29 at 3.
The appellant does not claim that she has been returned to a position with a
reduction in grade or pay as compared to what she held prior to taking th e
temporary promotion through the CEP.
¶21 Thus, we find the facts alleged clearly implicate the regulations rendering
the adverse action appeal process inapplicable to an agency’s action terminating
an employee’s temporary promotion and returning her to the position from which
she was temporarily promoted. See 5 C.F.R. § 752.401(b)(12). We find that the
appellant has failed to make a nonfrivolous allegation that this regulatory
limitation does not apply to her claims. Accordingly, we affirm, as modified, the
initial decision dismissing this appeal for lack of jurisdiction. 5
NOTICE OF APPEAL RIGHTS 6
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
5
The administrative judge found that, absent an otherwise appealable action, the Board
does not have jurisdiction over her allegations of prohibited discrimination. ID at 7.
The appellant does not specifically dispute this finding on review, and we find no
reason to disturb it. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),
(finding that 5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
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.
12
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 an d
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
13
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 war rants 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 t he 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 befor e
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.
14
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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
15
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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.