Zygmunt Choroszy v. Department of Homeland Security ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZYGMUNT PAUL CHOROSZY, JR., DOCKET NUMBERS
Appellant, PH-315H-16-0458-I-1
PH-315H-16-0458-C-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: April 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Zygmunt Paul Choroszy, Jr., Newtonville, Massachusetts, pro se.
Carolyn D. Jones, Esquire, Williston, Vermont, for the agency.
Elizabeth Bagby, Dallas, Texas, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decisions. The
initial decision in MSPB Docket No. PH-315H-16-0458-I-1 dismissed the
appellant’s appeal of his probationary termination as settled. The initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
in MSPB Docket No. PH-315H-16-0458-C-1 found the agency in compliance with
said agreement. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these appeals, we JOIN them and conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petitions for review. Therefore, we DENY the petitions for review. The initial
decision issued in MSPB Docket No. PH-315H-16-0458-I-1 is AFFIRMED.
Except as expressly MODIFIED to VACATE the administrative judge’s findings
regarding the validity of the settlement agreement and to include an analysis on
the lack of a material breach, we AFFIRM the initial decision in MSPB Docket
No. PH-315H-16-0458-C-1.
BACKGROUND
¶2 On September 8, 2016, the appellant filed an appeal with the Board o f his
probationary termination from the agency. Choroszy v. Department of Homeland
Security, MSPB Docket No. PH-315H-16-0458-I-1, Initial Appeal File (IAF),
Tab 1. On March 7, 2017, the appellant and the agency executed a settlement
agreement resolving the appeal. IAF, Tab 48. The agency, inter alia, agreed that
within 45 days from the effective date of the settlement agreement, it wou ld
change the appellant’s termination to a voluntary resignation, expunge his official
personnel folder (OPF) of documents concerning the termination, and provide a
neutral reference for up to 4 years. Id. at 6-7. In exchange, the appellant agreed
3
to voluntarily resign, not to seek employment or work for the Immigration and
Customs Enforcement (ICE) for 4 years, and to waive all claims against the
agency up to the effective date of the agreement, including his Board appeal. Id.
at 4-6. The administrative judge issued an initial decision on March 7, 2017,
dismissing the appellant’s appeal as settled, as he found that the parties
voluntarily entered into the lawful agreement and understood the terms. IAF,
Tab 49, Initial Decision (ID) at 1-2. Although not specified in the agreement, the
administrative judge entered it into the record for enforcement purposes. IAF,
Tab 48 at 4-9; ID at 2.
¶3 On May 12, 2017, the appellant filed a petition for enforcement with the
Board’s Northeastern Regional Office, claiming that the agency breached the
settlement agreement because it did not provide him with a corrected Standard
Form 50 (SF-50) reflecting his voluntary resignation within 45 days as required
by the settlement agreement. Choroszy v. Department of Homeland Security,
MSPB Docket No. PH-315H-16-0458-C-1, Compliance File (CF), Tab 1 at 4. In
this same pleading, the appellant argued that the settlement agreement was void,
as it is against public policy and an adhesion contract. Id. at 4-5. The appellant
requested that the administrative judge invalidate the agreement and reinstate the
appeal of his probationary termination. Id. at 5. The administrative judge
docketed the MSPB Docket No. PH-315H-16-0458-C-1 appeal as a petition for
enforcement and provided the parties the requisite burdens of proof and an
opportunity to submit argument and evidence on the matter. CF, Tab 2 at 1-3. In
its filing, the agency stated that it was in compliance with all terms of the
settlement agreement. CF, Tab 3 at 5-6. The agency explained that, due to
technical problems with its personnel/payroll system, it was not able to expunge
the appellant’s OPF of the termination and generate an updated SF-50 reflecting
his resignation until May 8, 2017, which was 17 days beyond the date set in the
settlement agreement. CF, Tab 1 at 9, Tab 3 at 5-6. The agency averred that it
4
did not receive any employment reference inquiries about the appellant prior to
May 8, 2017. CF, Tab 3 at 6, 11.
¶4 On July 26, 2017, the administrative judge issued an initial decision in the
compliance matter, finding the agency in compliance with the settlement
agreement. CF, Tab 8, Compliance Initial Decision (CID) at 1-4. The
administrative judge also found that the appellant failed to prove that the
settlement agreement was invalid. CID at 5-6. On August 29, 2017, the appellant
filed a petition for review of this initial decision. Compliance Petition for
Review (CPFR) File, Tab 1. The agency responded in opposition and the
appellant filed a reply. CPFR File, Tabs 4-5.
¶5 On March 15, 2018, the Clerk of the Board advised the appellant that it also
docketed his petition for enforcement in MSPB Docket No. PH-315H-16-0458-
C‑1, filed with the regional office on May 12, 2017, as a petition for review of
the initial decision in MSPB Docket No. PH-315H-16-0458-I-1, as he was
challenging the validity of the settlement agreement that was the subject of the
initial decision in that matter. Petition for Review (PFR) File, Tab 2 at 1-2. The
Clerk notified the appellant that his petition for review in MSPB Docket
No.PH-315H-16-0458-C-1 concerning the compliance initial decision remained
pending. Id. at 1 n.1. Because the petition for review in MSPB Docket
No. PH-315H-16-458-I-1 appeared untimely filed, the parties were provided an
opportunity to present argument and evidence on the issues of timeliness and the
merits of the appellant’s petition. Id. at 1-2. The appellant responded by seeking
a waiver of the time limit to file a petition for review, citing medical reasons.
PFR File, Tab 3 at 1-2. The agency responded in opposition and the appellant
filed a reply. PFR File, Tabs 4-5.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The two matters pending before the Board are joined.
¶6 As a preliminary matter, we note that joinder of two or more appeals filed
by the same appellant is appropriate when doing so would expedite processing of
the cases and not adversely impact the interests of the parties. Tarr v.
Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2). We find that the appellant’s two appeals meet this criterion, and
we join them as a result.
In his compliance initial decision in MSPB Docket No. PH-315H-16-0458-C-1,
the administrative judge improperly ruled on the validity of the settlement
agreement.
¶7 In his compliance initial decision in MSPB Docket No. PH-315H-16-0458-
C-1, the administrative judge addressed the appellant’s claims that the settlement
agreement was invalid. CID at 4-6. Such an attack on the validity of a settlement
agreement must be made through a petition for review of the initial decision
dismissing the appeal as settled. Virgil v. U.S. Postal Service, 75 M.S.P.R. 109,
112 (1997); Mahoney v. Department of Labor, 56 M.S.P.R. 69, 72 (1992). Thus,
the administrative judge erred in addressing the appellant’s claim, and the
compliance initial decision must be modified to vacate the findings on the
validity of the settlement agreement that was the subject of the initial decision in
MSPB Docket No. PH-315H-16-0458-I-1. As noted, the Clerk of the Board has
docketed the appellant’s petition for enforcement in MSPB Docket No. PH-315H-
16-0458-C-1 as a petition for review of that initial decision. PFR File, Tab 2.
We address that petition for review and the validity of the settlement agreement
below.
6
The initial decision in MSPB Docket No. PH-315H-16-0458-I-1 is affirmed, as
the appellant failed to prove that the settlement agreement is invalid. 2
¶8 In his petition for review of the initial decision in MSPB Docket
No. PH 315H-16-0458-I-1, the appellant contends that the Board should
invalidate the settlement agreement. PFR File, Tab 1 at 4-5. A party challenging
the validity of a settlement agreement bears a heavy burden of showing a basis for
invalidation. Schwartz v. Department of Education, 113 M.S.P.R. 601, ¶ 8
(2010). A party may challenge the validity of a settlement agreement if he
believes it was unlawful, involuntary, or the result of fraud or mutual mistake.
Id.; Wadley v. Department of the Army, 90 M.S.P.R. 148, ¶ 4 (2001). The
appellant failed to prove any of these circumstances.
¶9 The appellant first argues that the Board should invalidate the settlement
agreement because it is counter to public policy, as it contains a provision barring
him from seeking employment or working for ICE for a period of 4 years. PFR
File, Tab 1 at 4-5, Tab 5 at 4-5. However, these types of provisions are common
in “clean record agreements” and are routinely recognized by the Board as valid.
See, e.g., Thomas v. Department of Housing & Urban Develop ment, 63 M.S.P.R.
649, 659 (1994) (finding lawful a settlement agreement containing a provision in
which the appellant agreed not to apply for certain types of positions in exchange
for a clean record and other terms); Roane v. U.S. Postal Service, 53 M.S.P.R. 1,
2-3 (1992) (noting that the valid settlement agreement contained a provision
barring the appellant from employment with the agency in the future); Laranang
v. Department of the Navy, 40 M.S.P.R. 233, 236 n.4 (1989) (holding that a
provision barring the appellant from seeking or accepting employment with the
2
The Clerk of the Board notified the parties that it appeared that the appellant did not
timely file his petition for review of the initial decision in MSPB Docket No. PH -315H-
16-0458-I-1. PFR File, Tab 2 at 1-2. Both parties filed pleadings on the issue. PFR
File, Tabs 3-4. However, based on the disposition of the appellant’s petition for review
in that appeal, we need not resolve the issue of whether he established good cause for
an untimely filing of his petition for review.
7
agency for 2 years was a valid part of the agreement). Contrary to the appellant ’s
position, public policy favors settlement agreements in administrative and civil
actions. Clay v. Department of the Army, 47 M.S.P.R. 406, 408 (1991). The
appellant’s argument provides no basis to disturb the initial decision’s dismissal
of his appeal.
¶10 The appellant also argues on review that the settlement agreement should be
invalidated because it is an adhesion contract, as the agency was in a p osition of
power and gave him no choice but to sign the agreement or to never again be
employed with the Federal Government. PFR File, Tab 1 at 4. To establish that a
settlement was a result of coercion or duress, a party must prove that he
involuntarily accepted the other party’s terms, that circumstances permitted no
alternative, and that such circumstances were the result of the other party’s
coercive acts. Candelaria v. U.S. Postal Service, 31 M.S.P.R. 412, 413 (1986).
The record demonstrates that the appellant voluntarily accepted the terms of the
agreement, as evidenced by the language of the agreement itself, which states that
the parties “entered into it voluntarily and of their own free wil l, without duress
or coercion.” IAF, Tab 48 at 8. Furthermore, the agreement provides that “[t]he
parties acknowledge that they have both participated in the drafting of the terms
of this [a]greement.” Id. The agreement also provides that the parties agreed that
they had “an opportunity to consult with counsel.” Id.¶11 The appellant had an alternative to the agreement, as he could have
continued with the appeal of his termination. The appellant ’s contention that if
he did not sign the agreement he would not be employable with the Federal
Government is not supported by any evidence. PFR File, Tab 1 at 4, Tab 5 at 3.
The appellant then apparently argues the converse, by stating that entering the
agreement has prevented him from all Federal employment. PFR File, Tab 1 at 4,
Tab 5 at 4. We find unpersuasive the appellant’s arguments to invalidate the
agreement on these grounds.
8
¶12 On review, the appellant claims that he involuntarily accepted the terms of
the settlement agreement due to the administrative judge’s “deep seated
favoritism toward the [a]gency,” as demonstrated by the administrative judge ’s
failure to rule on the appellant’s various motions. PFR File, Tab 5 at 5. To prove
this allegation, an appellant must present evidence that he involuntarily accepted
the terms, that the circumstances presented no alternative, and that the
circumstances resulted from the administrative judge’s coercive acts. Anderson v.
Department of the Air Force, 51 M.S.P.R. 691, 695 (1991). As explained herein,
the evidence establishes that the appellant voluntarily accepted the terms of the
agreement and that he had an alternative route that he could have chosen.
Further, the administrative judge’s failure to issue rulings on the appellant’s
motions does not rise to the level of coercive conduct that would have forced him
to enter into a settlement agreement with the agency. This claim does not provide
a reason to set aside the initial decision.
Despite the modifications to the initial decision in MSPB Docket No. PH-315H-
16-C-1, the appellant did not prove that the agency materially breached the
settlement agreement.
¶13 The Board retains enforcement authority over settlement agreements that
have been entered into its record, independent of any finding of Bo ard
jurisdiction over the underlying matter appealed. Delorme v. Department of the
Interior, 124 M.S.P.R. 123, ¶ 21 (2017). In this case, the administrative judge
entered the agreement into the record on March 7, 2017, vesting the Board with
enforcement authority. ID at 2. Accordingly, this petition for enforcement is
properly before the Board.
¶14 In the compliance initial decision, the administrative judge determined that
the agency was in compliance with the settlement agreement, albeit after missing
the deadline. CID at 3-4. Specifically, the agency expunged the appellant’s OPF
of any mention of the termination action on May 8, 2017, or 17 days after the date
9
contained in the agreement. 3 CF, Tab 3 at 5-6. The administrative judge
reasoned that because the agency’s actions were not in bad faith and the terms of
the agreement were fulfilled, there was no showing of noncompliance. CID at 4.
¶15 Because the agency unquestionably did not timely comply with the terms of
the agreement, there must be an assessment of whether such a breach was
material in nature. Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 11
(2001). If there is a material breach, the nonbreaching party may elect between
rescinding the agreement, enforcing the agreement, or reinstating his appeal.
Wonderly v. Department of the Navy, 68 M.S.P.R. 529, 532 (1995). Whether
there has been a material breach depends on the extent to which the injured party
is deprived of a benefit reasonably expected from the agreement. Leeds v. U.S.
Postal Service, 108 M.S.P.R. 113, ¶ 4 (2008). A breach is material when it
relates to a matter of vital importance or goes to the essence of the agreement.
Galloway v. Department of Agriculture, 110 M.S.P.R. 311, ¶ 7 (2008). The
agency’s actions in this instance do not rise to the level of a material breach.
¶16 An integral part of the settlement agreement was for the agency to purge the
appellant’s OPF of documentation related to the termination action so it would
not damage his future employment prospects. IAF, Tab 48 at 4-9. Despite the
appellant’s contention on review, there is no evidence of any prospective
employer obtaining records of his termination or contacting the agency prior to
May 8, 2017. CPFR File, Tab 1 at 5-6. The agency employee charged with
handling the appellant’s neutral reference submitted a sworn declaration
affirming to that effect. CF, Tab 3 at 11. Therefore, even considering the
agency’s 17-day untimely expungement of the appellant’s OPF as a breach, it did
not adversely impact his future employment potential, an expected benefit of the
agreement. As such, we find that there was no material breach. See King v.
Department of the Navy, 178 F.3d 1313 at *2-3 (Fed. Cir. 1999) (Table) (finding
3
The settlement agreement does not include a provision requiring the agency to issue
the appellant a copy of his resignation SF-50. CF, Tab 1 at 7-12.
10
that a breach of the agency’s expungement provision was not material); 4 Herring,
90 M.S.P.R. 165, ¶ 15 (finding compliance with the settlement agreement, as the
agency’s failure to timely request an expungement of documents as outlined in
the settlement agreement was not a material breach).
¶17 The appellant argues on review that the administrative judge ’s supposed
bias for the agency while adjudicating the initial appeal led to continued bias in
the compliance matter. CPFR File, Tab 1 at 2-3, Tab 5 at 6, 11-12. The appellant
lists supposed ex parte communications between the agency and the
administrative judge, the lack of rulings on his motions in the initial appeal, and
the administrative judge’s demeanor on a status call in the initial appeal to
support his argument. Id. To show bias, an appellant must make a substantial
showing of personal bias to overcome to presumption of honesty and integrity
that accompanies administrative adjudicators. Anderson, 51 M.S.P.R. at 696; see
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(finding that an administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible” (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). A review of the record demonstrates no such showing.
¶18 On review, the appellant claims that the agency breached the settlement
agreement for partisan political reasons and in retaliation for his reporting sexual
harassment. CPFR File, Tab 1 at 3-4. The appellant also alleges that he was
sexually harassed and assaulted and battered by an agency attorney. Id. at 4-5.
Yet, because the appellant’s appeal is a petition for enforcement, the Board may
only decide whether the agency has breached the agreement entered into the
record and may not decide a claim of discrimination that is alleged to be a basis in
4
The Board may rely on unpublished U.S. Court of Appeals for the Federal Circui t
decisions if it finds, as here, the reasoning persuasive. Vores v. Department of the
Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
11
whole or in part of the agency’s noncompliance. See King v. Reid, 59 F.3d 1215,
1218-19 (Fed. Cir. 1995).
¶19 In his petition for review, the appellant takes issue with the agency’s
responses to his discovery requests and claims that he was not given enough time
to raise such issues prior to the issuance of the initial decision. CPFR File, Tab 1
at 4-5, Tab 5 at 6, 11-12. The administrative judge granted the appellant’s
request for discovery on June 12, 2017, and set July 3, 2017, as the closure of
discovery date. CF, Tab 6 at 1. According to the appellant, he did not receive the
agency’s response to his discovery requests until July 13, 2017. CPFR File,
Tab 1 at 4. There is no evidence, however, that he raised the agency’s purported
delay in responding to discovery with the agency representative , as required by
the Board’s regulations, and he did not file a motion to compel with the
administrative judge. See 5 C.F.R. § 1201.73(c), (d)(3). These failures preclude
the appellant from raising a discovery dispute on review for the first time.
Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 12 (2015). Even if the
appellant had filed a motion to compel below, he has not shown how the
information he sought would have changed the result of his appeal. See Russell v.
Equal Employment Opportunity Commission, 110 M.S.P.R. 557, ¶ 15 (2009).
¶20 Finally, the appellant’s additional arguments on review provide no reason to
overturn the overall conclusion of the initial decision in MSPB Docket
No. PH-315H-16-0458-C-1, as such arguments relate to the initial decision in
MSPB Docket No. PH-315H-16-0458-I-1. CPFR File, Tab 1 at 21.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision in MSPB Docket
No. PH-315H-16-0458-I-1. 5 U.S.C. § 7703(a)(1). The initial decision in MSPB
5
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
Docket No. PH-315H-16-0458-C-1, 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 in MSPB Docket No. PH-315H-16-0458-
C-1. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the
time limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the three main possible 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:
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 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
14
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
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
15
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. 6 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.
6
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 t he 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 comp etent 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.