John Doe v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER
Appellant, DE-0752-20-0416-I-1
v.
DEPARTMENT OF COMMERCE, DATE: August 12, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Muther , Denver, Colorado, for the appellant.
Christiann C. Burek and Ashley Geisendorfer , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for conduct unbecoming a Federal employee,
finding that the appellant rebutted the presumption of nexus. For the reasons
discussed below, we GRANT the agency’s petition for review and AFFIRM the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s findings regarding the charge and the application of the
rebuttal presumption of nexus. We VACATE the administrative judge’s finding
that the appellant rebutted that presumption, and SUSTAIN the removal action,
finding that the appellant failed to rebut the presumption of nexus and that the
agency considered all relevant factors and did not abuse its managerial discretion
in removing the appellant.
BACKGROUND
The following facts are not in dispute. The appellant was employed as a
ZP-5 Supervisory Research Chemist with the National Oceanic and Atmospheric
Administration (NOAA). 2 Initial Appeal File (IAF), Tab 7 at 21. On
September 9, 2019, the appellant, while at home, put his hand down his minor
daughter’s shirt and touched her breast. Then, when his daughter went to say
good night to him, the appellant grabbed her shirt and pulled it up above her
breasts. Id. at 93. As a result of his actions, the appellant was arrested and
charged with sexual assault on a child-position of trust. Id. at 87. As part of an
agreement with the prosecutor, the appellant eventually pled guilty to child abuse
with a stipulated sexual factual basis, a class 2 misdemeanor, and was sentenced
to 5 years of sex offender probation, which included sex offense specific
treatment, abstinence from alcohol and drugs, certain restrictions as to contact
with minors, and registering with Colorado’s misdemeanor sex offender registry. 3
Id. at 56, 63-64.
Effective September 17, 2020, the agency removed the appellant for
conduct unbecoming a Federal employee based on one specification based upon
2
The appellant’s position was the equivalent of a GS-15 on the general schedule pay
scale. Department of Commerce Special Pay Tables , available at
https://www.commerce.gov/sites/default/files/2021-01/CAPS%20Special%20Pay%20
Chart%202021.pdf .
3
Colorado’s misdemeanor sex offender registry is not available on the internet but can
be requested by mail. IAF, Tab 7 at 36; see also Colorado Convicted Sex Offender
Search, https://apps.colorado.gov/apps/dps/sor/ (last visited Aug. 12, 2024).
3
the same events, alleging that he unlawfully and with criminal negligence caused
injury or unreasonably placed himself in a position that posed a threat of injury to
the life or health of a child, which resulted in the injury of that child. Id.
at 21-30, 51-54. The appellant filed a Board appeal alleging that his removal did
not promote the efficiency of the service. IAF, Tab 1 at 4. After holding a
hearing, the administrative judge issued an initial decision sustaining the charge,
but reversing the removal action, finding that the appellant had rebutted the
presumption of nexus and the agency failed to prove by preponderant evidence
that removal would promote the efficiency of the service. IAF, Tab 27, Initial
Decision (ID).
The agency has filed a petition for review of the initial decision, arguing
that the administrative judge erred in finding a lack of nexus between the
appellant’s off-duty misconduct and the efficiency of the service. 4 Petition for
Review (PFR) File, Tab 1. The appellant responded in opposition to the agency’s
petition for review, to which the agency replied. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
As we noted, the facts leading to the appellant’s removal are not in dispute,
and because the record supports the administrative judge’s finding to sustain the
charged misconduct, we see no reason to disturb it. ID at 8; Hearing Recording
(HR) (testimony of the appellant); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
106 (1997); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987). Therefore, the only issue presented on review is
whether there is nexus between the appellant’s off-duty misconduct and the
efficiency of the service.
4
In her initial decision, the administrative judge ordered the agency to provide the
appellant with interim relief if either party filed a petition for review. ID at 14-15. In
its petition for review, the agency certified that it provided the appellant with interim
relief and included documentation in support of the certification. Petition for Review
File, Tab 1 at 4, 32.
4
The nexus requirement, for purposes of whether an agency has shown that
its action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish his or her duties satisfactorily or some
other legitimate Government interest. Merritt v. Department of Justice,
6 M.S.P.R. 585, 596 (1981), modified on other grounds by Kruger v. Department
of Justice, 32 M.S.P.R. 71, 75 n.2 (1987). “[W]ide berth” is to be given to an
agency’s decision concerning what type of adverse action is necessary to promote
the efficiency of the service as long as that decision bears some nexus to the
reason for the adverse action. Einboden v. Department of the Navy, 802 F.3d
1321, 1325-26 (Fed. Cir. 2015).
An agency may show a nexus between off-duty misconduct and the
efficiency of the service by the following three means: (1) a rebuttable
presumption in certain egregious circumstances; (2) preponderant evidence that
the misconduct adversely affects the appellant’s or coworkers’ job performance or
the agency’s trust and confidence in the appellant’s job performance; or
(3) preponderant evidence that the misconduct interfered with or adversely
affected the agency’s mission. Kruger, 32 M.S.P.R. 71, 74. The Board and the
U.S. Court of Appeals for the Federal Circuit have long recognized that acts of
sexual misconduct involving a minor are sufficiently egregious to apply a
presumption of nexus. See Allred v. Department of Health and Human Services,
786 F.2d 1128, 1130-31 (Fed. Cir. 1986); Graybill v. U.S. Postal Service,
782 F.2d 1567, 1569, 1574 (Fed. Cir. 1986); Graham v. U.S. Postal Service,
49 M.S.P.R. 364, 367 (1991); Williams v. General Services Administration,
22 M.S.P.R. 476, 478-79 (1984), aff’d, 770 F.2d 182 (Fed. Cir. 1985); Hayes v.
Department of the Navy, 15 M.S.P.R. 378, 380-81 (1983) aff’d, 727 F.2d 1535(Fed. Cir. 1984). Thus, we also agree with the administrative judge’s finding that
5
the appellant’s off-duty misconduct is sufficiently egregious to apply the
rebuttable presumption of nexus. 5 ID at 9.
If the employee’s conduct is so egregious that a nexus is presumed, then
the employee bears the burden of rebutting such a presumption. Graybill,
782 F.2d at 1573. In order to rebut the presumption of nexus, an appellant must
rebut the second and third category set forth in Kruger, i.e., the appellant must
establish that his off-duty misconduct did not affect his or his coworkers’ job
performance or the agency’s trust and confidence in his job performance ( Kruger
category 2) and he must establish that the misconduct did not interfere with or
adversely affect the agency’s mission (Kruger category 3). See Kruger,
32 M.S.P.R. 71, 74. For the reasons discussed below, we find that the appellant
did not successfully rebut either category, and thus we find that he did not rebut
the presumption of nexus.
The appellant’s off-duty misconduct impacted the performance of his duties.
The administrative judge found that the appellant successfully rebutted the
presumption of nexus, in part, by finding that his off-duty misconduct did not
impact the performance of his duties, explaining that the deciding official was
unable to “credibly and logically” link the appellant’s off-duty misconduct to his
work as a research scientist and the quality of the scientific data he gathered and
analyzed. 6 ID at 11. On review, the agency argues that the administrative judge
took a “myopic” view of the appellant’s job duties, because in addition to
5
Neither party disputes the finding that a rebuttable presumption of nexus applies.
6
The administrative judge found that the deciding official’s testimony was not credible
under Hillen because his assertions were “vague, speculative, generalized, and
ultimately unpersuasive.” ID at 11. A credibility assessment is proper when there is a
factual dispute at issue. See Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987) (stating that resolving credibility issues requires an administrative judge to
identify the factual questions in dispute). The administrative judge does not identify
nor do we find any factual disputes in this case which require a credibility assessment.
Because the issue of nexus is a legal question, not a factual one, we need not defer to
the administrative judge’s finding. See McNeil v. Department of Justice, 117 M.S.P.R.
533, ¶ 14 (2012) (recognizing that the question of whether the agency has established
nexus is a legal one).
6
researching and analyzing data, the appellant was also required to interact with
and present the agency’s work to external entities. PFR File, Tab 1 at 22.
The record supports a finding that the appellant’s job involved more than
simply gathering and analyzing data. The appellant, as a high-level supervisory
chemist, was responsible for presenting the results of the agency’s work,
including making media appearances, attending national and international
conferences, publishing in scientific journals, and presenting to and collaborating
with important stakeholders such as state Government advisors, policy-makers,
academic institutions, and other Federal agencies. HR (testimony of the deciding
official, testimony of the appellant); PFR File, Tab 1 at 9, 20-23; IAF, Tab 7
at 103-110. The appellant has even been quoted in several magazines and
newspapers, including the Los Angeles Times and Smithsonian Magazine, and
has appeared in YouTube videos made by the agency and the National
Aeronautics & Space Administration (NASA), a frequent collaborator of the
agency. PFR File, Tab 1 at 21-23.
The appellant has not presented any evidence that establishes that his role
did not require a substantial amount of public interaction. Indeed, the appellant’s
statements about his position support the agency’s characterization. In his
2019 summary of accomplishments, the appellant identified several collaborative
projects with NASA, numerous published scientific papers he authored, and
national and international conferences he attended in his capacity as an agency
employee. IAF, Tab 7 at 103-110. The appellant’s testimony reiterates that in his
position he worked closely with other Federal agencies, collaborated with
academic institutions, had authored hundreds of scientific papers, and had
presented and networked at various scientific conferences and conventions.
HR (testimony of the appellant).
Accordingly, the assertion that the appellant merely gathered and analyzed
data is incorrect. ID at 11. It is clear that an integral part of the appellant’s job
was to present the agency’s work to outside parties. The deciding official
7
testified that to perform such duties, it was imperative for the appellant to
conduct himself in a credible, reliable, and trustworthy manner. HR (testimony
of the deciding official). However, because of his off-duty misconduct, the
deciding official explained that the agency had lost confidence in the appellant’s
ability to be an effective representative for the agency. Id.; IAF, Tab 7 at 87-90.
The Federal Circuit has agreed that an agency’s loss of trust and confidence
in an employee who represented the agency to other agencies, grantees, state
Governments or private institutions, adversely affects the employer -employee
relationship and thus the efficiency of the service. Allred, 786 F.2d at 1131. For
instance, in Allred, the appellant was employed as a Supervisory Cost
Accountant, which required him to represent the agency before state and local
Governments, universities, hospitals, and various other grantees in preparing cost
allocation plans. Id. at 1129. The appellant was removed from his position after
pleading nolo contendere to one felony count of child molestation. Id. In
affirming the Board’s decision to uphold the removal, the Federal Circuit
expressly agreed with the Board’s determination that the supervisor’s loss of trust
and confidence in an employee who represented the agency to numerous
stakeholders affected the efficiency of the service. Id. at 1131. Similarly, here,
the deciding official testified that he had lost trust and confidence in the
appellant’s ability to perform his duties. HR (testimony of the deciding official).
As the appellant’s position requires him to represent the agency to external
stakeholders, we agree with the court in Allred that such loss in trust and
confidence adversely affects the employer-employee relationship, and thus, the
efficiency of the service. Allred, 786 F.2d at 1131. Contrary to the
administrative judge’s findings, we find that the appellant’s performance of his
duties was impacted by his off-duty misconduct. ID at 11-12. Thus, because the
appellant failed to rebut the second Kruger category, i.e., performance of duties,
he failed to rebut the presumption of nexus. Kruger, 32 M.S.P.R. 71, 74.
8
The appellant’s off-duty misconduct undermined the agency’s mission.
Nevertheless, even if the appellant established that his off-duty misconduct
did not impact the performance of his duties, he would still fail to rebut the
presumption of nexus because, contrary to the administrative judge’s findings, we
find that his off-duty misconduct undermined the agency’s mission, i.e., the third
Kruger category. 7 Id.; ID at 11.
As the deciding official explained during his testimony, the agency’s
mission is not only to research and collect scientific data, but also to disseminate
such information to entities outside of the agency. HR (testimony of the deciding
official). He explained that it was crucial for scientists, like the appellant, to be
recognized as a credible voice so that the science could be relied upon by the
entities in their decision making. Id. Furthermore, as the deciding official
testified, the appellant’s research included such important issues as climate
change, and thus, it was imperative that the public have trust in the science being
represented to them in order to combat the threat of climate skepticism. Id.Overall, the deciding official emphasized that credibility was necessary for the
agency to effectively represent science, for that science to be relied upon by
others, and that it not be placed in a position where its credibility could be
questioned. Id.It is apparent to us that the appellant’s off-duty misconduct undermines the
agency’s mission. From the deciding official testimony, we understand that the
agency’s success hinges on its reputation for presenting credible and trustworthy
data. Therefore, it would be antithetical to the mission of the agency to retain
individuals who have engaged in conduct that calls into question their credibility,
trustworthiness, or integrity, especially when these same individuals are expected,
7
Because nexus may be proven by establishing either of the latter two categories set
forth in Kruger, in order to successfully rebut a presumption of nexus, the appellant
must successfully rebut both of the categories. See Kruger, 32 M.S.P.R. 71, 74. Thus,
if the appellant fails to rebut one of the categories, then he fails to rebut the
presumption of nexus. Id.9
as part of their duties, to represent the agency’s work. Employing such
individuals places the agency’s mission at risk by detracting from the scientific
data, undermining public confidence in its representations, and placing the agency
in a position where it must defend the source of the data versus the data itself.
The Board has held that it is sufficient for the agency to establish that
public perceptions of an employee’s misconduct would impair the efficiency of
the agency by undermining public confidence in it. Jordan v. Department of the
Air Force, 36 M.S.P.R. 409, 414 (1988), aff’d, 884 F.2d 1398 (Fed. Cir. 1989)
(Table). The appellant’s misconduct shocks the conscience, and calls into
question his judgment, credibility, trustworthiness, integrity, and overall
character. Further, the nature of the appellant’s misconduct is well known among
his peers, as the appellant admitted to disclosing his misconduct to numerous
individuals, including those outside of the agency. HR (testimony of the deciding
official, testimony of the appellant); IAF, Tab 18 at 10-28. Thus, it is not mere
speculation by the agency that members of the community know about his
misconduct. The reputational risk to the agency is significant, and the agency has
a legitimate concern that the appellant’s conduct detracts from its mission.
Therefore, we find that the deciding official articulated a clear and
reasonable concern that the agency’s mission was at risk if it continued to employ
the appellant. HR (testimony of the deciding official). Furthermore, we do not
find that the appellant presented sufficient evidence to rebut such a concern.
Besides the appellant’s bare assertion, there is no evidence that the agency’s
personnel contacted him after his arrest seeking his assistance in a work capacity.
HR (testimony of the appellant). Nevertheless, to the extent that this did occur, it
does not diminish the deciding official’s testimony that the agency lost
confidence in the appellant’s ability to perform his duties, nor does it mitigate the
agency’s concern that the appellant’s retention would undermine public
confidence in the agency and its work. Similarly, while the appellant presented
letters of support, the Board has found that such evidence does not outweigh the
10
agency’s apprehension as to an appellant’s ability to perform his duties and the
effect of his proven misconduct on the efficiency of the service. IAF, Tab 18
at 10-28; Jordan, 36 M.S.P.R. 409, 414-15 (explaining that written statements of
support by coworkers and satisfactory job performance did not outweigh the
agency’s legitimate apprehension as to his continued employment and the effect
of his proven misconduct on the agency); see Graham, 49 M.S.P.R. 364, 368
(finding that the testimony and statements of support from coworkers and friends
did not overcome the testimony of the appellant’s postmaster that he had lost trust
and confidence in the appellant). Accordingly, we find that the appellant’s
misconduct impacted the agency’s mission, and thus he failed to present
sufficient evidence to rebut the presumption of nexus.
The penalty of removal is within the bounds of reasonableness.
Because the administrative judge found that the appellant rebutted the
presumption of nexus, she did not determine if removal was a reasonable penalty.
ID at 12. Although we conclude that the administrative judge erred in finding
that the appellant rebutted the presumption of nexus, a remand is not necessary as
the record is complete and allows us to determine whether the penalty is
reasonable. Davis vs. Department of Veterans Affairs, 106 M.S.P.R. 654, ¶ 7
(2007) (finding remand to address the appellant’s discrimination claim
unnecessary when the record is complete and therefore the Board can make the
required findings).
When all of the agency’s charges have been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
the relevant factors and exercised management discretion within tolerable limits
of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013).
In reviewing an agency-imposed penalty, the Board must give due weight to the
agency’s primary discretion in maintaining employee discipline and efficiency;
the Board’s function is not to displace management’s responsibility, but to ensure
that managerial judgment has been properly exercised within tolerable limits of
11
reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302
(1981).
Here, the record reflects that the agency considered all relevant factors and
exercised its discretion within tolerable limits of reasonableness. The removal
decision contains a detailed and comprehensive review of the relevant factors,
noting the mitigating factors, but concluding that mitigation was not warranted.
IAF, Tab 7 at 24-27. The deciding official’s testimony reiterates the same
information. HR (testimony of the deciding official).
The Board has consistently held that the nature and seriousness of the
offense is the most important factor in a penalty determination. Arena v. U.S.
Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014), aff’d per curiam, 617 F. App’x 996(Fed. Cir. 2015) (Table); Raco v. Social Security Administration, 117 M.S.P.R. 1,
¶ 14 (2011). The egregious nature of the appellant’s misconduct alone is
sufficient to warrant removal. Nevertheless, there are several other aggravating
factors in this case. First, agencies are entitled to hold supervisors to a higher
standard than nonsupervisors because they occupy positions of trust and
responsibility. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010).
The appellant is a supervisor, and his actions, which involved him abusing a
position of trust as a parent, is antithetical to that of a supervisor. Second, the
notoriety of his misconduct is significant, as his arrest is public record, his name
appears on Colorado’s misdemeanor sex offender registry, and, most importantly,
he disclosed the facts of his misconduct to a sizeable number of individuals,
including colleagues, and thus, the misconduct appears to be well-known at least
within the scientific community. IAF, Tab 18 at 10-28; HR (testimony of the
appellant); Douglas, 5 M.S.P.R. 280, 305 (stating that notoriety of the offense or
impact upon the reputation of the agency is a factor to consider in penalty
determination). We have also considered the mitigating factors in this appeal,
including the appellant’s approximate 20 years of service, the numerous awards
12
and accolades he has received, and his lack of prior discipline, but find that they
are insufficient to support mitigation of the penalty.
Accordingly, because we find that the agency proved its charge, the
appellant did not rebut the presumption of nexus, and the agency considered all
relevant factors and did not exceed its managerial discretion in assessing the
penalty, we affirm the removal.
NOTICE OF APPEAL RIGHTS 8
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 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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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,
14
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
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
15
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
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.
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
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.
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.