Ronald Bajuscak v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD BAJUSCAK, DOCKET NUMBER
Appellant, DA-1221-15-0552-B-1
v.
DEPARTMENT OF VETERANS DATE: November 8, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ronald Bajuscak, Mesa, Arizona, pro se.
Chau Phan, Esquire, Salt Lake City, Utah, 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 remand initial decision,
which denied 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 petiti oner’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 by
this Final Order to VACATE the administrative judge’s findings concerning
whether the agency met its clear and convincing burden , we AFFIRM the remand
initial decision.
BACKGROUND
¶2 The relevant background information, as recited in the remand initial
decision, is generally undisputed. On June 5, 2011, the agency appointed the
appellant to a dentist position in the excepted service under 38 U.S.C. § 7401(1).
Bajuscak v. Department of Veterans Affairs, MSPB Docket No. DA-1221-15-
0552-B-1, Remand File (RF), Tab 29, Remand Initial Decision (RID) at 2;
Bajuscak v. Department of Veterans Affairs, MSPB Docket No. DA-1221-15-
0552-W-1, Initial Appeal File (IAF), Tab 10 at 87-88. Immediately before his
June 5, 2011 appointment to the excepted service at the Department of Veterans
Affairs (VA), the appellant worked as a dentist under a career-conditional
appointment for the U.S. Navy, beginning on August 30, 2010. RID at 2, 28-29.
The Standard Form 50 (SF-50) documenting his appointment to the dentist
position in the excepted service at the VA on June 5, 2011, stated in the remarks
section “initial probationary period completed.” RID at 2; IAF, Tab 10 at 87.
3
The agency issued a corrected SF-50 on October 17, 2011, changing the remarks
section to clarify that the appellant’s excepted-service appointment was subject to
the completion of a 2-year probationary period beginning on June 5, 2011. RID
at 2; IAF, Tab 10 at 86. The agency described the change as a required correction
because dentists and doctors appointed to the excepted service under Title 38 of
the United States Code are required to serve a 2-year probationary period, and the
appellant’s previous appointment was not to a position in the excepted service.
RID at 21, 29-30; IAF, Tab 9 at 11; see 38 U.S.C. § 7403(a)(2)(A)-(B), (b)(1).
¶3 On October 27, 2011, the appellant’s supervisor rated him as unsatisfactory
for the period of June 6 through September 30, 2011, commenting that he “does
not have potential for advancement to higher clinical and/or administrative
positions.” RID at 2-3. On November 9, 2011, the Acting Medical Center
Director detailed the appellant to “voluntary service” and assigned him to
nonpatient care duties, which included pushing wheelchairs and hospital beds.
RID at 3. On November 17, 2011, the Acting Chief of Staff recommended a
summary suspension of the appellant’s clinical privileges, pending the results of a
Summary Review Board. Id. Her recommendation was based on findings from a
review of 31 medical charts and adopted on that same day by a 3-member
Professional Standards Board (PSB). Id.; RF, Tab 22 at 181-82. On
November 21, 2011, the Acting Medical Center Director issued a letter removing
the appellant’s clinical privileges pending a comprehensive review of allegations
that aspects of his clinical practice did “not meet the accepted stan dards of
practice and potentially constitute[d] an imminent threat to patient welfare.” RID
at 3; RF, Tab 22 at 184. Within a week of receiving the letter removing his
clinical privileges, the appellant initiated contact with the agency’s equal
employment opportunity counselor on November 29, 2011, alleging that his
supervisor sexually harassed him and retaliated against him when he rejected her
advances and began seeking employment elsewhere. RID at 3-4.
4
¶4 On January 6, 2012, the PSB reviewed the appellant’s conduct and
performance and concluded that he failed to meet the standards of care expected
of agency dentists. RID at 5; IAF, Tab 9 at 57-58. The PSB recommended
terminating the appellant during his probationary period based on its summary
review of 31 patient records submitted by the appellant’s supervisor, the Chief of
Dental Service; progress notes and x-rays; and the written and oral responses of
the appellant. RID at 5; IAF, Tab 9 at 57. The Acting Chief of Staff agreed with
the PSB recommendation to terminate the appellant, and the Acting Medical
Center Director approved the recommendation and issued a letter terminating the
appellant effective January 20, 2012, during his 2-year probationary period. RID
at 5; IAF, Tab 9 at 15, 19.
¶5 After his termination, the appellant filed a complaint with the Office of
Special Counsel (OSC) (OSC File No. MA-12-2402), alleging that he was
subjected to the following retaliatory personnel actions: (1) his supervisor had
changed his SF-50 from permanent to probationary employment; (2) he received
an unsatisfactory midterm evaluation; (3) he was detailed to voluntary service;
(4) his dentist privileges were suspended; (5) his transfer to another facility was
rescinded; and (6) he was ultimately removed from his position. RID at 6; IAF,
Tab 18 at 44. On July 23, 2012, OSC informed the appellant that i t was closing
its investigation into whether a violation of 5 U.S.C. § 2302(b)(8) occurred and
that he could seek corrective action from the Board. RID at 6; IAF, Tab 18
at 45-46.
¶6 In 2015, the appellant filed another OSC complaint (OSC File No. MA-14-
4527), in which he alleged that the agency improperly required him to serve a
new probationary period and terminated him in retaliation for whistleblowing . 2
RID at 6-7, 11; IAF, Tab 18 at 47-48. On April 30, 2015, OSC informed the
appellant that it was closing its inquiry into his complaint. RID at 7, 11; IAF,
2
The record does not contain a copy of the OSC complaints filed by the appellant in
OSC File No. MA-14-4527 or in OSC File No. MA-12-2402. RID at 11 n.4.
5
Tab 18 at 47-48. Having exhausted his administrative remedy before OSC, the
appellant filed the instant IRA appeal with the Board, and he requested a hearing.
RID at 7, 11-12; IAF, Tab 1. The administrative judge dismissed the appeal as
untimely filed, but, on review, the Board found a sufficient basis to waive the
filing deadline and remanded the case for further adjudication. Bajuscak v.
Department of Veterans Affairs, MSPB Docket No. DA-1221-15-0552-W-1,
Remand Order (Apr. 29, 2016).
¶7 On remand, the administrative judge found that the appellant met his burden
of establishing that the Board has jurisdiction over his IRA appeal because he
exhausted his administrative remedies before OSC and made nonfrivolous
allegations that he made at least one protected disclosure that was a contributing
factor in the agency’s decision to take a personnel action. 3 RID at 12-14. After
holding a hearing, the administrative judge issued a remand initial decision
denying the appellant’s request for corrective action. RID at 41-42; RF, Tab 28,
Hearing Compact Disc. The administrative judge found that the appellant made
protected disclosures to a human resources (HR) officer in September 2011 when
he disclosed that his supervisor manipulated and threatened her subordinates and
that she used an illegal leave tracker form in violation of the Federal Service
Labor-Management Relations Act. RID at 17-21. 4 The administrative judge
further found that the appellant did not meet his burden of proving that any of his
protected disclosures was a contributing factor in any of the six alleged personnel
actions. RID at 13-14, 27-36. The administrative judge also found that,
3
The administrative judge also found that the Board lacks jurisdiction over an appeal of
his termination under 5 U.S.C. chapter 75 because appointees under 38 U.S.C.
§ 7401(1) are specifically excluded from the definition of “employee” under 5 U.S.C.
§ 7511. RID at 8. The administrative judge found, moreover, that the other personnel
actions that the appellant alleged on appeal were not adverse actions directly appealable
to the Board, and his allegations could only be reviewed by the Board in an IRA appeal.
Id. The parties do not dispute these findings on review, and we affirm them.
4
The administrative judge found that the appellant’s other alleged disclosures were not
protected whistleblowing as described in 5 U.S.C. § 2302(b)(8). RID at 14-27.
6
assuming arguendo that the appellant had demonstrated that his disclosures were
contributing factors in the actions taken against him, the agency proved by clear
and convincing evidence that it would have taken the personnel actions absent the
protected disclosures. RID at 36-41.
¶8 The appellant has filed a petition for review. Bajuscak v. Department of
Veterans Affairs, MSPB Docket No. DA-1221-15-0552-B-1, Remand Petition for
Review (RPFR) File, Tab 1. The agency has responded in opposition to his
petition, and the appellant has replied. RPFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The appellant submits the following one-paragraph argument in support of
his petition:
Numerous documents were submitted including specific actions
against me with timelines from information recorded on the very day
it occurred. During my hearing many specific occurences [sic] with
timelines submitted on documents were not considered in my
opinion. The entire timing of all the falsifications of my hiring
documents, being placed in charge and then suddenly being removed
clinically’s [sic] timing is proof within itself of whistleblowing
retaliation by the Veterans Hospital. Nationally, this attack on
whistleblowers has been exposed, as I went through, and again the
system “being broken” is trying to deny me my rights. I want a
non-biased review of all my submitted documents be cross examined
paying particular notice to dates of actions against me and the timing
of final actions taken. I know numerous issues were not expressed
by me during the hearing and was and am shocked that such
aggressive actions of retaliation are considered okay!!
RPFR File, Tab 1 at 4. We construe the appellant’s arguments as challenging the
administrative judge’s finding that his protected disclosures were not a
contributing factor in the following personnel actions: alter ing his SF-50 to
require the completion of a 2-year probationary period and his termination. 5 In
5
The appellant does not appear to challenge the administrative judge’s other findings
concerning the alleged protected disclosures and personnel actions. We affirm those
findings for the reasons stated in the initial decision. RID at 14-27.
7
his reply brief, the appellant further asserts that he has additional witnesses to
testify against the agency. RPFR File, Tab 5 at 3. For the following reasons, we
find that the administrative judge properly found that the appellant failed to prove
by preponderant evidence that his disclosures were a contributing factor in any of
the personnel actions.
¶10 When, as here, an appellant exhausts his administrative remedy with OSC
and establishes the Board’s jurisdiction in an IRA appeal, the appellant then must
establish a prima facie case of whistleblower retaliation by, as relevant here,
proving by preponderant evidence that he made a protected disclosure as
described in 5 U.S.C. § 2302(b)(8) that was a contributing factor in a personnel
action taken against him. 6 See Lu v. Department of Homeland Security,
122 M.S.P.R. 335, ¶ 7 (2015). One way of proving that a disclosure was a
contributing factor in a personnel action is the knowledge/timing test. Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test,
an appellant can prove the contributing factor element through evidence that the
official taking the personnel action knew of the whistleblowing disclosure and
took the personnel action within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor in the personnel
action. Id. If the appellant makes a prima facie showing that his protected
disclosure was a contributing factor in the agency’s personnel action, the burden
shifts to the agency to prove by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected disclosure. Lu,
122 M.S.P.R. 335, ¶ 7.
6
The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465, section 101(b)(1)(A) expanded the grounds for covered
individuals to bring an IRA appeal with the Board to include reprisal for classes of
protected activity described at 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D). All of
the alleged retaliatory acts at issue in this appeal occurred prior to the December 27,
2012 effective date of the WPEA, and thus this expanded grant of jurisdiction does not
apply here. RID at 9; see Rebstock Consolidation v. Department of Homeland Security,
122 M.S.P.R. 661, ¶¶ 7-8 (2015).
8
¶11 The remand initial decision reflects—concerning the agency officials who
took the alleged actions—that the administrative judge considered the elapsed
time between their having had any actual or constructive notice of the appellant’s
protected disclosures and their taking the personnel actions, but she found no
evidence that the officials involved in correcting the appellant’s SF-50 and
terminating him had actual or constructive knowledge of his September 2011
protected disclosures. RID at 27-30, 34-36. Thus, she found no contributing
factor under the knowledge/timing test.
¶12 The administrative judge also recognized that, if the appellant failed to
satisfy the knowledge/timing test, the Board should consider other evidence, such
as that pertaining to the strength or weakness of the agency’s reasons for taking
the personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether those individuals had a desire or
motive to retaliate against the appellant. RID at 27-28; see Stiles v. Department
of Homeland Security, 116 M.S.P.R. 263, ¶¶ 23-24 (2011). The administrative
judge found that the officials involved in taking the personnel actions again st the
appellant had strong, nonretaliatory motives for the personnel actions taken,
including changing his SF-50 to require his completing a 2-year probationary
period and terminating him during his probationary period. RID at 21, 28-30,
34-36. Moreover, it is undisputed that the appellant’s whistleblowing was not
personally directed at the HR specialist who signed the corrected SF-50 requiring
him to complete a 2-year probationary period, the PSB members that
recommended his termination, or the Acting Medical Center Director who
terminated him. RID at 21. Accordingly, the administrative judge found that the
appellant failed to establish a prima facie case of whistleblower retaliation by
proving that his protected disclosure was a contributing factor in a personnel
action taken against him. RID at 27-36. The appellant’s general arguments on
review do not persuade us that there were any errors in the administrative judge’s
contributing-factor analysis. See Tines v. Department of the Air Force,
9
56 M.S.P.R. 90, 92 (1992) (finding 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).
¶13 To the extent the appellant argues generally that certain documents related
to his whistleblowing disclosures were not considered or mentioned, RPFR File,
Tab 1 at 4, it is well established that an administrative judge’s failure to mention
all of the evidence of record does not mean that she did not consider it in reaching
her decision. Marques v. Department of Health & Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶14 Although the appellant asks the Board to review all of the documents that
he submitted on appeal to take notice of “the dates of actions against [him] and
the timing of final actions taken,” we find that his petition for review is not
sufficiently specific to enable the Board to ascertain whether there is a serious
evidentiary challenge justifying a complete review of the record. See Tines,
56 M.S.P.R. at 92; Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133
(1980) (determining that, before the Board will undertake a complete review of
the record, the petitioning party must explain why the challenged fac tual
determination is incorrect and identify the specific evidence in the record which
demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 1982) (per
curium).
¶15 For the foregoing reasons, we will not disturb the administrative judge’s
explained finding that the appellant failed to prove that his protected disclosures
were a contributing factor in the agency’s decision to take any of the contested
personnel actions. RID at 27-36. Because we agree with the administrative
judge’s finding that the appellant failed to prove by preponderant evidence that
his protected disclosures were a contributing factor in the actions taken, it is
unnecessary to determine whether the agency proved by clear and convincin g
evidence that it would have taken the actions at issue in the absence of the
disclosure. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
10
n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate
the administrative judge’s findings concerning whether the agency met its clear
and convincing burden.
¶16 We have considered the appellant’s assertion on review that he had
numerous witnesses who could have testified at the hearing on his appeal but he
did not want to overwhelm the proceeding. RPFR File, Tab 5 at 3. We also have
considered his contention that unnamed individuals, who have been “fired or
forced to resign from this same VA medical center,” could provide new testimony
against the agency. Id. However, the appellant offers no specific evidence or
argument to explain what the unidentified potential witnesses might testify about
that would have changed the outcome of his appeal. Moreover, the appellant
waited until after the record closed below and the initial decision was issued to
come forward with these unnamed witnesses, and he cannot now complain that
these witnesses were not allowed to testify.
¶17 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 Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115. In this case, the appellant has
failed to establish that he could not reasonably have known that these alleged
witnesses had information relevant to his appeal prior to the close of the record
below or that he could not find the same or similar information elsewhere. See
Pangarova v. Department of the Army, 28 M.S.P.R. 652, 656 (1985) (finding that
an affidavit from a witness who had previously not come forward, about a subject
that the appellant knew was at issue, was not “new” evidence when he failed to
show that he could not find the same or similar information elsewhere); Williams
v. General Services Administration, 22 M.S.P.R. 476, 479 (1984) (finding that
affidavits from witnesses known to the agency but previously unwilling to testif y
were not “new” evidence), aff’d, 770 F.2d 182 (Fed. Cir. 1985). We therefore
find that the appellant’s assertions on review do not provide a sufficiently sound
11
reason for overturning the thorough, well-reasoned findings stated by the
administrative judge in the remand initial decision.
NOTICE OF APPEAL RIGHTS 7
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 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).
7
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a clai m of
13
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:
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
14
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 descri bed 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. 8 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
8
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.
15
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.