Veronica Coutee v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERONICA COUTEE, DOCKET NUMBER
Appellant, AT-0752-22-0612-I-1
v.
DEPARTMENT OF VETERANS DATE: August 9, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Laura Kempin , Esquire, St. Petersburg, Florida, for the agency
Luis E. Ortiz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. On petition for review, the appellant reargues that she
proved her affirmative defenses of EEO retaliation and disability discrimination,
and that the agency violated her due process rights. Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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 and AFFIRM the initial
decision.
¶2 On March 28, 2021, the appellant was reassigned to the position of
GS-2005-05 Supply Technician in Logistics at the Orlando VA Healthcare
System in Orlando, Florida. 2 Initial Appeal File (IAF), Tab 6 at 120. On
November 9, 2021, the appellant requested 240 hours of advanced sick leave “due
to a medical condition,” which was later denied by several agency officials. IAF,
Tab 28 at 88. Around this time, the appellant filed a formal complaint of
discrimination against her supervisor alleging that she had been subjected to a
hostile work environment based on race, sex, national origin, disability, and
reprisal in August and September 2021. 3 IAF, Tab 32 at 17, 19, 26. On
2
The appellant was reassigned to this position as a reasonable accommodation as part
of a settlement agreement with the agency in which she agreed to withdraw an Equal
Employment Opportunity (EEO) complaint against the agency’s Police Service (her
previous position). IAF, Tab 32 at 19, 26, 28.
3
The appellant alleged that the supervisor subjected her to a hostile work environment
by stating that overtime must be COVID-19 related, by stopping providing her training
in her new position, by moving her to a different office, and by “instructing” her that
her reasonable accommodation and FMLA had expired and to email him only regarding
those matters. IAF, Tab 32 at 17-18. With regard to the latter claim, it seems that the
appellant’s complaint concerned the supervisor’s request for a copy of the reasonable
3
December 23, 2021, the appellant stopped reporting for work. IAF, Tab 6 at 98,
Tab 28 at 85. On or around February 22, 2022, the appellant claims that she filed
for disability retirement. IAF, Tab 28 at 6, 85. It appears that sometime in
February 2022, or on April 1, 2022, the appellant requested leave without pay
(LWOP) for 1 year, beginning February 23, 2022, and ending February 23, 2023,
for unspecified medical conditions, which several agency officials later denied
due to “supply chain resource deficit incurred.” IAF, Tab 28 at 85, Tab 32
at 14-15. On May 2, 2022, the agency mailed the appellant a Return to Duty
Order notifying her that she had been absent without leave for 448 hours and had
not submitted a proper request for leave to cover her absences and ordering her to
return to duty the next day or to contact her supervisor to request leave. IAF, Tab
6 at 98-100. The letter also informed the appellant, among other things, how to
request leave under the Family and Medical Leave Act (FMLA) or a reasonable
accommodation. Id. at 98-99. The appellant did not respond to the order or to
the supervisor’s subsequent attempts to contact her and advise her of her right to
leave under FMLA. Id. at 41, 56.
¶3 By letter dated August 12, 2022, the supervisor proposed the appellant’s
removal for absence without leave (AWOL) (18 specifications), failure to follow
leave requesting procedures (18 specifications), and failure to follow instructions
(one specification). Id. at 35-45. The first charge alleged that the appellant was
absent without authority on several specific calendar days between February 14
and July 1, 2022; 4 the second charge alleged that the appellant was absent without
authority and did not request leave for those same days; and the third charge
alleged that the appellant failed to follow the May 2, 2022 Return to Duty notice.
Id. at 35-41. The appellant did not provide an oral or written reply within the
14-day window provided by the notice of proposed removal. See id. at 18, 27-33,
accommodation in place for her. Id. at 31-33.
4
The proposal notice erroneously notes the year as 2021 in some of the specifications.
See IAF, Tab 6 at 7, 35, 38.
4
42. By letter dated September 1, 2022, the deciding official, the Acting Medical
Center Director/CEO, notified the appellant that she had sustained the charges
and removed the appellant effective September 15, 2022. Id. at 18-24.
¶4 The appellant filed the instant Board appeal. IAF, Tab 1. After holding the
requested hearing, the administrative judge issued an initial decision affirming
the agency’s removal action. IAF, Tab 40, Initial Decision (ID) at 1, 21. The
administrative judge first sustained the AWOL charge after finding that the
agency proved 5 of the 18 specifications. ID at 2-6. In analyzing this charge, the
administrative judge noted that the record contained a February 10, 2022 letter
from the appellant’s licensed mental health counselor recommending that she take
leave from work due to burn out, as well as a February 17, 2022 FMLA request
signed by the counselor indicating that the appellant had chronic and permanent
or long-term conditions including generalized anxiety and post-traumatic stress
disorder, along with the appellant’s request for LWOP from February 23, 2022,
through February 23, 2023. ID at 3-6; see also IAF, Tab 32 at 14-15; IAF, Tab
28 at 90; IAF, Tab 31 at 4-7. The administrative judge explained that it was
unclear whether or when the appellant submitted these additional documents to
the agency, but he found it highly likely that she had provided them to her
management chain and that the appellant’s year-long LWOP request constituted a
de facto request for FMLA leave. ID at 4-6. The administrative judge concluded
that the agency erred in failing to grant the appellant up to 12 weeks of FMLA
leave for the period of February 22through May 17, 2022 and thus only sustained
the specifications regarding the period before the appellant’s LWOP request and
after the expiration of her FMLA entitlement. 5 ID at 5-6.
¶5 The administrative judge also sustained the related specifications of the
second charge of failure to follow leave requesting procedures, finding that this
5
The administrative judge recognized that although the period he found covered by
FMLA leave was inexact, the salient point was that many of the specifications were
invalid because the appellant was entitled to a substantial amount of FMLA leave
during the period covered by those specifications. ID at 6 n.5.
5
charge was based on the same facts underlying the AWOL charge, and suffered
from the same issues as the identically dated specifications in that charge, and
that it thus merged with the AWOL charge. ID at 6-8. He also found that the
agency proved the third charge of failure to follow instructions. ID at 8-9. The
administrative judge then considered and found that the appellant failed to prove
her affirmative defenses of EEO reprisal, ID at 9-11, disability discrimination, ID
at 11-14, and violation of her due process rights, ID at 14-15. 6 He thereafter
found that the agency proved nexus, ID at 15-16, but that the agency misapplied
certain Douglas factors and thus he would not defer to the agency’s penalty
determination, ID at 16-21; see also Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 relevant
factors to be considered in determining the appropriateness of an imposed
penalty). After conducting his own Douglas factors analysis, the administrative
judge found that the seriousness of the appellant’s misconduct, combined with
other factors, supported the agency’s action and that removal was within the
tolerable limits of reasonableness. ID at 16-21.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response. PFR File, Tab 3.
¶7 On review, the appellant reargues that she proved her affirmative defenses
of EEO retaliation, PFR File, Tab 1 at 18-22, and disability discrimination, id.
at 22-24, and that the agency violated her due process rights, id. at 12-18. She
does not dispute the administrative judge’s finding that the agency proved all
three of its charges, his finding that the agency proved nexus, or his analysis of
the Douglas factors and conclusion that removal was within the tolerable limits of
reasonableness. With respect to these issues, the record reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions, and we therefore discern to reason to
6
At the hearing, the appellant withdrew her other affirmative defenses of harmful
procedural error, race, sex, and age discrimination. ID at 9.
6
disturb his findings. See, e.g., Clay v. Department of the Army, 123 M.S.P.R.
245, ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions). We have considered the appellant’s arguments that
she proved her affirmative defense of EEO retaliation, and that the agency
violated her due process rights, however, we find them unavailing, and they do
not provide a reason to disturb the initial decision.
¶8 We also find that the appellant did not show that the administrative judge
erred in finding that she did not prove her affirmative defense of disability
discrimination. On review, the appellant briefly alleges that she proved that the
agency discriminated against her based on her disability. PFR File, Tab 1 at 22.
Below, the appellant did not provide much detail at all regarding this claim, even
though the administrative judge properly notified her of the requirements to
establish an affirmative defense of reasonable accommodation, disparate
treatment, or disparate impact disability discrimination. See IAF, Tab 1 at 7,
Tab 28 at 13, Tab 34 at 2. Based on the initial decision, the administrative judge
interpreted her argument as a claim of denial of reasonable accommodation. See
ID at 11-13. In this regard, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship on its business operations.
29 C.F.R. § 1630.9(a); Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13
(2014). In order to establish disability discrimination based on a failure to
accommodate, an employee must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed
to provide a reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13. A
qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
7
without accommodation. Haas v. Department of Homeland Security, 2022 MSPB
36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m). Notably, both a claim
of disability discrimination based on an agency’s failure to reasonably
accommodate and a claim based on an individual’s status as disabled require that
the individual be “qualified.” Haas, 2022 MSPB 36, ¶ 28.
¶9 In the initial decision, the administrative judge stated that the appellant did
not characterize her year-long LWOP request or her FMLA application as
requests for reasonable accommodation, but that to the extent that she was
contending as much, he was unpersuaded. ID at 13-14. He noted the February
10, 2022 letter from the appellant’s licensed mental health counselor
recommending that she take leave due to burnout and the February 17, 2022
FMLA request in which the appellant’s counselor indicated that the appellant had
generalized anxiety and post-traumatic stress disorder that rendered her
“incapacitated for a continuous period of time” and “not able” to perform the
essential functions of her job. ID at 13; see also IAF, Tab 28 at 90, Tab 31
at 4-7. He also noted that the appellant testified that she applied and was
approved for disability retirement, and he discussed the definition of disabled in
the disability retirement context. ID at 13. The administrative judge then stated
that the Board has held that coming to work on a regularly scheduled basis is an
essential function of almost every government job, and he concluded that the
appellant’s medical conditions—which he pointed out prevented her from
maintaining her attendance at work and which she testified enabled approval of
her disability retirement application—prevent her from being considered a
qualified person with a disability. 7 ID at 14 (citing Stevens v. Department of the
Army, 73 M.S.P.R. 619 (1997)).
¶10 In her petition for review, the appellant does not address or directly dispute
any of the administrative judge’s findings, or his characterization of her
7
However, the administrative judge also noted that there is no record evidence of
OPM’s purported approval of the appellant’s disability retirement application, and the
appellant testified she has not yet received disability retirement benefits. ID at 13 n.8.
8
argument. See PFR File, Tab 1 at 22-24. Instead, she claims that the supervisor
improperly denied her leave and telework “despite the fact it had been previously
approved as a reasonable accommodation,” and that the supervisor was “aware of
the disability and reasonable accommodation but claimed he did not know it was
still in effect when clearly he did.” Id. at 22-23. This argument is unclear, and
upon review of the record and relevant hearing testimony, we are unsure what the
appellant is arguing with respect to this affirmative defense. In addition,
although the appellant alleges the supervisor denied her telework, the
administrative judge found that there was no dispute that the appellant was on
full-time telework. ID at 17. The appellant and her representative are quite
vague when they reference her “disability,” “reasonable accommodation,” and
leave requests throughout the record, hearing, and on review. See Tines v.
Department of the Air Force, 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 more serious evidentiary challenge justifying a complete
review of the record).
¶11 On review, the appellant also seems to be claiming that the supervisor
discriminated against her based on her disability when he asked for a copy of the
appellant’s reasonable accommodation restrictions when he took over as her
supervisor. PFR File, Tab 1 at 23. As noted above, the appellant was reassigned
to the Supply Technician position as a reasonable accommodation in exchange for
withdrawing a prior EEO complaint. See supra note 2. To the extent that this is
what the appellant is attempting to argue on review, she did not argue this below
—or at least do so coherently—and the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980).
9
¶12 We also do not see where the appellant presented an argument below that
the agency’s denial of her year-long request for LWOP was a denial of a
reasonable accommodation. See ID at 14. The administrative judge appears to
have construed the appellant’s claims very liberally. However, we agree with the
administrative judge that the appellant did not prove that she is a qualified
individual with a disability. ID at 14; see Haas, 2022 MSPB 36, ¶ 28; Miller,
121 M.S.P.R. 189, ¶ 13. It is the appellant’s burden to show that she is an
individual with a disability who can perform the essential functions of her
position with or without accommodation. Haas, 2022 MSPB 36, ¶ 28. Here, the
evidence indicates that the appellant cannot perform the essential functions of her
position, and she does not provide any evidence or argument to the contrary. As
the administrative judge pointed out, the record shows that the appellant’s
counselor indicated in the February 2022 FMLA request that the appellant “will
be incapacitated for a continuous period of time” and “is not able” to perform the
essential functions of her job due to her generalized anxiety and post-traumatic
stress disorder, and the appellant stated that she applied, and was approved for,
disability retirement due to the severity of her symptoms. IAF, Tab 31 at 4-7,
Tab 28 at 85; ID at 13.
¶13 With regard to the appellant’s request for 1 year of LWOP, we note that
while there are no “magic words” that an employee must use to request a
reasonable accommodation, the employee must explain that she is requesting an
adjustment or modification to working conditions or duties to assist with her
disability. Patton v. Jacobs Engineering Group, 874 F.3d 437, 444 (5th Cir.
2017); see Foster v. Mountain Coal Company, 830 F.3d 1178, 1188 (10th Cir.
2016) (explaining that a reasonable accommodation request “must make clear that
the employee wants assistance for his or her disability”); Ballard v. Rubin,
284 F.3d 957, 962 (8th Cir. 2002) (stating that while there are no magic words
needed to request a reasonable accommodation, the employee must make clear
10
that he wants assistance for his disability). 8 We acknowledge that a request for
LWOP for a specific period of time may be a reasonable accommodation
depending on the particular circumstances in a given case. See EEOC v. Journal
Disposition Corp., No. 10–CV–886, 2011 WL 5118735, at *3 (W.D. Mich. Oct.
27, 2011); Woodruff v. LaHood, 777 F.Supp.2d 33, 44 (D.D.C. 2011). 9 However,
the purpose of a reasonable accommodation is to assist an individual with their
disability and enable them to perform the essential functions of their position.
29 C.F.R. § 1630.2(o)(1)(ii). The appellant has not explained, and we cannot
discern from the record, how 1 year of LWOP would enable her to perform the
essential functions of her position. Neither the appellant nor her counselor
explains how it would be an effective remedy. Furthermore, the appellant’s
counselor was noncommittal about how long the appellant’s condition is expected
to last. IAF, Tab 36-2 at 28:00 (hearing testimony of K. Vankorlaar); see also
Hilda H. v. Department of Veterans Affairs , EEOC Appeal No. 0120162443, 2018
WL 1392246, at *4 (Mar. 6, 2018), req. to reconsider denied, EEOC Request No.
0520180318, 2018 WL 3584199 (July 3, 2018) (stating that LWOP for an
indefinite period of time with absolutely no indication that one will or could
return is not an accommodation contemplated under the Rehabilitation Act).
¶14 In sum, to the extent that the appellant argued that the agency failed to
reasonably accommodate her, or otherwise discriminated against her, she has not
proven that she is a qualified individual with a disability. Haas, 2022 MSPB 36,
¶ 28; Miller, 121 M.S.P.R. 189, ¶ 13. Thus, we agree with the administrative
8
Decisions of courts other than the U.S. Court of Appeals for the Federal Circuit,
although not binding, may be followed if the Board finds the reasoning persuasive.
Mynard v. Office of Personnel Management, 108 M.S.P.R. 58, ¶ 14 (2008).
9
Although decisions from the Equal Employment Opportunity Commission (EEOC) are
not binding, the Board generally defers to the EEOC on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its support
or is so unreasonable that it amounts to a violation of civil service law. Southerland v.
Department of Defense, 119 M.S.P.R. 566, ¶ 20 (2013), overruled on other grounds by
Pridgen v. Office of Management and Budget, 2022 MPSB 31.
11
judge that the appellant’s disability discrimination affirmative defense fails. See
Wickramasekera v. Veterans Administration, 21 M.S.P.R. 707, 714 (1984)
(declining to disturb a finding on the basis of an undeveloped and unsupported
argument).
NOTICE OF APPEAL RIGHTS 10
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 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).
10
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. 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
13
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 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. 11 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
11
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.