Joel Wilmoth v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL WILMOTH, DOCKET NUMBER
Appellant, DA-0752-21-0109-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel J. Gamino, Esquire, Oklahoma City, Oklahoma, for the appellant.
Jermiah Phelix, Esquire, and Michele S. McNaughton, Esquire, Tinker Air
Force Base, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed its chapter 75 removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective December 23, 2020, the agency removed the appellant from his
position as a WS-11 Aircraft Engine Mechanical Work Inspector Supervisor
pursuant to 5 U.S.C. chapter 75. Initial Appeal File (IAF), Tab 5 at 14, 16 -19,
80-86. The agency’s notice of proposed removal stated as follows: “[t]he
reasons (sic) for this proposed action is your deliberate attempt to coerce your
subordinate to lie.” Id. at 80. The notice of proposed removal thereafter
identified the “specific reason” for the proposed action as follows: “On 13 Dec
2019, you attempted to coerce [agency employee K.B.] to lie about a statement he
gave confirming inappropriate comments made by you.” Id. The notice
explained that K.B. had provided agency management with a written statement
confirming that he had heard the appellant make an inappropriate comment to a
group of agency employees in February 2019, which the appellant had, on
December 13, 2019, asked him to retract. Id. The appellant appealed the
agency’s action to the Board and requested a hearing on the matter. IAF, Tab 1
at 2.
3
¶3 Following a hearing conducted via Zoom for Government, the
administrative judge issued an initial decision finding that the agency had failed
to prove its charge and reversing the agency’s removal action. IAF, Tab 30,
Initial Decision (ID) at 1, 12. The administrative judge concluded that the
incident described in the agency’s notice of proposed removal had occurred as
alleged, i.e., that the appellant had asked K.B. to retract his written statement
regarding the appellant’s February 2019 inappropriate comment. ID at 6-9. In so
concluding, the administrative judge found “the appellant’s outright denial of the
conversation [with K.B.] to be inherently improbable,” explaining, among other
things, that the appellant’s demeanor and body language while testifying
“suggested nervousness and evasiveness.” ID at 9. The administrative judge also
concluded that the appellant had, in asking K.B. to retract his written statement,
“acted deliberately or with intent.” ID at 9-10. To this end, he reasoned that “the
most logical result of the appellant’s actions was to spare himself from suffering
another disciplinary action.” 2 ID at 10. The administrative judge concluded,
however, that the agency failed to show that the appellant’s conduct constituted
an attempt to coerce his subordinate to lie. ID at 10-12. To this end, he found
that the appellant and K.B. did not have a supervisor/subordinate relationship
during the relevant timeframe. ID at 11. He also found that, although the
appellant’s request was highly inappropriate and likely constituted conduct
unbecoming a supervisor and/or Federal employee, that was not the charge at
issue; rather, the agency had charged the appellant with attempting to coerce his
subordinate to lie. ID at 11-12.
¶4 The agency has filed a petition for review, and the appellant has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In its petition, the agency
2
As set forth in the initial decision, ID at 3 n.1, p rior to the events giving rise to this
appeal, the appellant received written reprimands on October 31, 2018, and
November 22, 2019, for discourteous conduct and inappropriate conduct, respectively,
IAF, Tab 5 at 97-105.
4
argues the following: (1) the administrative judge misconstrued the language of
the agency’s charge; (2) the administrative judge erroneously analyzed whether
the appellant coerced his subordinate instead of whether he attempted to coerce
his subordinate; and (3) the agency proved the essence of the charge. P FR File,
Tab 1 at 4-7.
¶5 Following the close of the record on review, the appellant filed a motion for
interim relief. PFR File, Tab 5 at 4-6. He also filed a motion to strike the
agency’s petition for review, arguing that the agency did not include a certificate
indicating that it had complied with the administrative judge’s interim relief
order. PFR File, Tab 4 at 4-5; ID at 13-14. The agency did not respond to either
motion.
ANALYSIS
The Board declines to dismiss the agency’s petition for review for failure to
comply with the administrative judge’s interim relief order.
¶6 When, as here, the appellant was the prevailing party in the initial decision
and the decision granted the appellant interim relief, any petition for review filed
by the agency must be accompanied by a certification that th e agency has
complied with the interim relief order. 5 C.F.R. § 1201.116(a). The agency’s
failure to provide the required certification may result in the dismissal of th e
agency’s petition for review. 5 C.F.R. § 1201.116(e). Here, the agency failed to
provide the requisite certification with its petition; indeed, the agency’s petition
did not address interim relief at all. PFR File, Tab 1 at 4-7.
¶7 The appellant has submitted two filings wherein he contends that the agency
failed to comply with the administrative judge’s interim relief order and requests
that the Board both order such relief and “strike” the agency’s petition for review.
PFR File, Tab 4 at 4-5, Tab 5 at 4-6. The Board will not entertain a motion to
enforce an interim relief order; rather, it will treat such a motion as a motion to
dismiss the petition for review. Batten v. U.S. Postal Service, 101 M.S.P.R. 222,
¶ 6, aff’d, 208 F. App’x 868 (Fed. Cir. 2006). Accordingly, we construe both of
5
the appellant’s filings as requests to dismiss the agency’s petition for review for
noncompliance with the administrative judge’s interim relief order.
¶8 An appellant’s motion to dismiss a petition for review for noncompliance
with an interim relief order must be filed before the record on review closes,
unless it is based on new and material evidence that was not readily available
before the record closed. Forma v. Department of Justice, 57 M.S.P.R. 97, 102,
aff’d, 11 F.3d 1071 (Fed. Cir. 1993) (Table). Here, the appellant submitted both
of his motions after the close of the record on review, i.e., more than 25 days
after the date of service of the agency’s petition for review, and he has not shown
that his motions are based on any information that was not readily available to
him before the close of the record. See 5 C.F.R. § 1201.116(d). Accordingly, we
find the appellant’s motions untimely filed without good cause shown. However,
even if the appellant’s motions had been timely filed, we would exercise our
discretion not to dismiss the petition for review because the issue of the agency’s
compliance with the interim relief order is now moot by virtue of our final
decision. See Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-34
(Fed. Cir. 2004) (explaining that the Board has discretion in deciding whether to
dismiss a petition for review for failure to comply with an interim relief order);
see also Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016)
(concluding that the Board’s issuance of a final decision rendered moot the
parties’ dispute concerning the agency’s compliance with the interim relief
order).
The agency’s linguistic argument is unpersuasive and, in any event, is not
material to the outcome of this appeal.
¶9 The agency contends that the administrative judge erred in finding that it
failed to prove its charge. PFR File, Tab 1 at 4-7. To this end, the agency argues
that the administrative judge misconstrued the language of the charge, i.e., that ,
as written, the charge did not require the agency to prove that the appellant was
K.B.’s direct supervisor. Id. at 7. The agency avers that the charge merely used
6
the term “your [s]ubordinate,” and the appellant could, on occasion, dictate
K.B.’s work assignments. Id. We find this assertion unpersuasive.
¶10 The agency is required to prove the charge as it is set out in the notice of
proposed removal. Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 8 (2007).
In resolving the issue of how a charge should be construed, the structure and
language in the proposal notice and the decision notice will be examined.
George v. Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d,
263 F. App’x 889 (Fed. Cir. 2008). The nature of a charge should be construed in
light of the accompanying specifications and circumstances. Id.¶11 Here, although the notice of proposed removal did not specifically identify
a “charge,” it identified the “specific reason” for the appellant’s removal as
“Deliberate Attempt to Coerce your Subordinate to Lie.” 3 IAF, Tab 5 at 80
(emphasis added). The notice of proposed removal also stated as follows: “ [t]he
reasons (sic) for this proposed action is your deliberate attempt to coerce your
subordinate to lie.” Id. (emphasis added). The decision letter used identical
language. Id. at 16. Thus, the charge/reason, as written, did not describe K.B. as
“a” subordinate; rather, it used the possessive adjective “your” to signify that
K.B. was in the appellant’s chain of command, as opposed to subordinate in a
general sense, i.e., lower in grade. 4 Cf. Robb v. Department of Defense,
77 M.S.P.R. 130, 133-34 (1998) (explaining the distinction between the charge
3
Generally, in a proposal notice, an agency sets out the charge(s) levied against the
employee, or the reason(s) for the action, each followed by one or more specifications
or specific instances of behavior underlying that charge. However, there is no
requirement that the notice be in any particular form. Schifano v. Department of
Veterans Affairs, 70 M.S.P.R. 275, 279 (1996).
4
K.B. had previously worked directly for the appellant. ID at 8 n.8. Moreover, at the
time of the conversation between K.B. and the appellant, K.B. was working in the
appellant’s building, and, therefore, the appellant could dictate K.B.’s work
assignments for the day. ID at 11. Nevertheless, we find that a different outcome is not
warranted; indeed, it is undisputed that the appellant could not exercise typical
supervisory functions over K.B., e.g., he could not rate K.B.’s performance or
approve/deny K.B.’s leave requests. Id.7
itself and the narrative outlining the charge and finding that the latter, which is
descriptive in nature, is not an element of the charge). In any event, this
linguistic dispute is not material to the outcome of this appeal. Indeed, as set
forth in greater detail below, inherent to a charge of coercion is some degree of
threat. As discussed herein, we discern no basis to disturb the administrative
judge’s conclusion that the agency failed to show that the appellant threatened
K.B. in any capacity; rather, the evidence showed only that the appellant asked
K.B. to recant his statement. ID at 11-12. Thus, even if the agency had charged
the appellant with “Deliberate Attempt to Coerce a Subordinate to Lie,” a
different outcome would not be warranted.
The agency’s contention regarding coercion versus attempted coercion is both
unclear and unpersuasive.
¶12 The agency argues that the administrative judge erroneously analyzed the
charge by requiring it to show that the appellant coerced his subordinate instead
of showing that he attempted to coerce his subordinate. PFR File, Tab 1 at 5 -6.
The agency asserts that it “is axiomatic in American jurisprudence that,
fundamental to an attempt charge, it is of no consequence if the actor succeeds or
not, or is even capable of success – the only requirement is that the actor take
action in furtherance of his goal.” Id. at 5. We find this assertion unpersuasive.
¶13 The Board has infrequently analyzed a charge of coercion. In Johnson v.
Department of Transportation, 13 M.S.P.R. 652, 654 (1982), aff’d, 735 F.2d 510(Fed. Cir. 1984), the Board considered the appropriate legal standard for proving
coercion in the context of an appellant’s claim of coercion as a defense for his
having participated in a strike against the Government. In so doing, the Board
rejected both the standard for coercion generally applicable in criminal cases, i.e.,
threat of imminent and unavoidable death or serious bodily harm, and the
standard generally applicable in civil cases, i.e., threats to persons and/or
8
property, to include economic compulsion. 5 Johnson, 13 M.S.P.R. at 656-59.
Instead, the Board held that the appellant was required to show “ that his failure to
report for work was the result of a threat or other intimidating conduct, directed
toward him, sufficient to instill in him a reasonable fear of physical danger to
himself or others, which a person of ordinary firmness would not be expected to
resist.” Id. at 656, 661.
¶14 Here, we find that the agency failed to satisfy any of the above-discussed
standards regarding coercion; indeed, the record is devoid of evidence that the
appellant threatened K.B., either explicitly or implicitly, 6 in any capacity. As set
forth in the initial decision, K.B. never indicated that “the appellant threatened
his job or job duties, made quid pro quo promises to take certain actions if [K.B.]
agreed to do as he requested, or that the appellant even ordered him to retract the
statement.” ID at 11 (emphasis in original). Indeed, K.B. did not testify as to the
possible consequences of his refusal. Id. Instead, the record reflected that the
appellant asked K.B. to recant his statement, that K.B. declined to do so, and that
K.B. thereafter “went about his business without further incident.” ID at 11-12.
¶15 The agency’s contention—that the administrative judge erroneously
analyzed the charge by requiring the agency to show that the appellant coerced
his subordinate instead of requiring the agency to show that he attempted to
coerce his subordinate—is unclear. PFR File, Tab 1 at 5-6. The agency
5
In his initial decision, the administrative judge stated that “[t]he Board has held that
coercion may be found where it is based on threats to, among other things, i nterfere
with a business or occupation.” ID at 10 (citing Johnson v. Department of
Transportation, 13 M.S.P.R. 652, 657-58 (1982)). This statement was imprecise. In
Johnson, the Board referenced interference with a business or occupation in the context
of summarizing the test of duress or undue influence generally appli cable in civil
actions; the Board, however, rejected this standard. Johnson, 13 M.S.P.R. at 657-58.
This imprecision is not material to the outcome of this appeal. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
6
Indeed, as discussed above, the appellant did not have typical supervisory authority
over K.B.; thus, the appellant’s request could not reasonably be construed as an implicit
threat to K.B.’s position at the agency. ID at 11.
9
seemingly argues that it proved attempted coercion because the administrative
judge found that the appellant intentionally requested that K.B. retract his
statement so as to avoid discipline. Id. at 5 & n.1. This finding, however, is not
material to an attempted coercion charge; indeed, the finding pertains to the
appellant’s intent to avoid discipline, not his intent to threaten to exert undue
influence on K.B., i.e., to coerce him. 7 ID at 9-10; see United States v. Isabella,
918 F.3d 816, 831 (10th Cir. 2019) (explaining, in the criminal law context, that,
to prove an “attempt,” the Government must show both specific intent to commit
the charged crime and a substantial step towards completion of the same) . Thus,
the agency’s argument does not provide a basis to disturb the initial decision.
The agency failed to prove the essence of the charge.
¶16 Last, the agency contends that it proved “the essence” of the charge because
“the [administrative judge] found that the [a]gency proved every other aspect of
the charge besides coercion.” PFR File, Tab 1 at 6. To this end, the agency avers
that the administrative judge found that the conversation between the appellant
and K.B. underlying the charge had taken place as alleged and that the appellant
had acted deliberately. Id. We find these assertions unavailing.
¶17 If an agency chooses to label an act of misconduct, it is bound to prove the
elements that make up the legal definition of that charge. Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 202 (1997). Here, the agency did not charge the
appellant with misconduct or with having an inappropriate conversation with
K.B.; rather, it elected to charge him with attempting to coerce his subordinate.
7
For purposes of his analysis, the administrative judge broke the charge of “Deliberate
Attempt to Coerce your Subordinate to Lie” into three distinct elements: (1) whether
the factual allegations were true, i.e., whether the December 13, 2019 conversation
between the appellant and K.B. took place as alleged; (2) whether the appellant acted
deliberately, or with intent, during the course of the same, i.e., whether the appellant
intentionally requested that K.B. retract his statement so as to avoid discipline; and
(3) whether the appellant’s request constituted an attempt to coerce his subordinate to
lie. IAF, Tab 5 at 80; ID at 5-12. The agency’s apparent argument conflates the latter
two elements. PFR File, Tab 1 at 5-6.
10
IAF, Tab 5 at 80. Thus, the agency did not prove the charge as written. See
Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
(explaining that the Board may not split a single charge into several independent
charges and then sustain one of the newly formulated charges, which represents
only a portion of the original); see also Alvarado v. Department of the Air Force,
103 M.S.P.R. 1, ¶ 9 (2006) (stating that the Board is bound to decide cases
according to how the charge is written, not how it could or should have been
written). Accordingly, we find no basis to disturb the initial decision.
ORDER
¶18 We ORDER the agency to cancel the removal action and to restore the
appellant effective December 23, 2020. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶19 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act an d/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
11
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the of fice that issued
the initial decision on your appeal.
12
NOTICE OF APPEAL RIGHTS 8
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 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 mu st 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:
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
14
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. 9 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.
9
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.