Josep Cannavo v. General Services Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH CANNAVO, DOCKET NUMBER
Appellant, NY-1221-14-0113-W-1
v.
GENERAL SERVICES DATE: May 17, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jesse C. Rose , Esquire, Astoria, New York, for the appellant.
Nicole Ludwig , Esquire, East Williston, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED by
this Final Order as set forth in ¶¶ 11, 13-17 below, we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant is a supervisory GS-14 Senior Property Manager for the
agency. Initial Appeal File (IAF), Tab 1 at 1, 9. On September 17, 2012, he met
with his immediate supervisor to discuss the performance ratings that he had
proposed for his subordinates that year. IAF, Tab 33 at 204-05; Hearing Compact
Disc, September 27, 2016 (HCD 1) at 12:10 (testimony of the appellant). The
appellant’s supervisor directed him to lower several of the ratings, and the
appellant did so the same day. IAF, Tab 33 at 210; HCD 1 at 12:50 (testimony of
the appellant). However, on November 14, 2012, the appellant again entered the
agency’s rating system and, unbeknownst to his supervisor, changed some of the
ratings back to what he had originally proposed. IAF, Tab 5 at 55-56; HCD 1
at 24:50 (testimony of the appellant).
¶3 The following week, on November 19, 2012, the appellant’s supervisor met
with him about an unrelated matter. 2 She informed the appellant that an audit had
2
The administrative judge identified this meeting as taking place on November 15,
2012. IAF, Tab 55, Initial Decision at 7. We find that it is immaterial which of the two
dates this meeting took place.
3
revealed that one of his subordinates was failing to implement proper
administrative controls for his credit card activity, and she instructed the
appellant to issue this subordinate a letter of reprimand. IAF, Tab 33 at 13-15,
295. The appellant protested that his supervisor was singling out this individual
for discipline even though numerous other employees had engaged in the same
misconduct. Id. at 295. The appellant’s supervisor replied that the appellant was
not to concern himself with those other employees. Id.¶4 On November 28, 2012, the appellant’s second-level supervisor discovered
that the appellant had changed his subordinates’ performance ratings 2 weeks
earlier. He admonished the appellant verbally, warning him that the penalty for
disobeying a supervisor ranges from reprimand to suspension. IAF, Tab 5 at 59.
Nevertheless, on December 6, 2012, the appellant contacted the agency’s human
resources department to inquire into the process for changing the performance
rating for yet another of his subordinates. Id. at 62. A human resources official
notified the appellant’s second-level supervisor of this contact. Id.¶5 On December 13, 2012, the appellant’s first-level supervisor proposed to
suspend the appellant for 5 days because of the conduct surrounding the changed
performance ratings. Id. at 43-46. The charges essentially amounted to failure to
follow instructions and lack of candor. Id. On December 18, 2012, the appellant
sought assistance from the agency’s Inspector General (IG) regarding the
proposed suspension and the credit card audit. IAF, Tab 51 at 40-43. On
January 16, 2013, the appellant’s second-level supervisor issued his decision to
suspend the appellant for 5 days, beginning January 28, 2016. IAF, Tab 5
at 20-21.
¶6 The appellant then filed a complaint with the Office of Special Counsel
(OSC), alleging that the agency had retaliated against him for disclosures that he
had made to his immediate supervisor and to the IG. IAF, Tab 1 at 15, Tab 33
at 9-361. When OSC closed the file without taking corrective action, the
appellant filed this IRA appeal with the Board. IAF, Tab 1.
4
¶7 The administrative judge found that the Board has jurisdiction over the
appeal and held the appellant’s requested hearing. IAF, Tab 35, Tab 55, Initial
Decision (ID) at 1-2. Following the hearing, she issued an initial decision
denying corrective action on the merits. ID at 2, 19. She found that the
appellant’s November 19, 2012 disclosure to his supervisor that she was singling
out the appellant’s subordinate was protected. ID at 15. She also found that his
disclosure to the IG regarding his proposed suspension was not protected. Id.She concluded that neither disclosure was a contributing factor in the 5-day
suspension. ID at 15-17. She further found that the agency proved by clear and
convincing evidence that it would have suspended the appellant notwithstanding
his disclosure to his supervisor. ID at 17-18. The administrative judge observed
that the appellant was attempting to challenge a May 28, 2013 letter of
performance counseling, but determined that he had not exhausted his
administrative remedies with OSC on this alleged personnel action. ID at 18.
¶8 The appellant has filed a petition for review, arguing that his 5-day
suspension was in retaliation for his refusal to obey an order that would have
required him to violate a directive pertaining to the agency’s Performance Plan
and Appraisal System, as well as the applicable collective bargaining agreement.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3. 3
ANALYSIS
¶9 To prove the merits of a claim of reprisal in an IRA appeal before the
Board, an appellant must show by preponderant evidence that he engaged in
protected activity under 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that the protected activity was a contributing factor in the
contested personnel action. Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 5 (2016). If the appellant proves his case, the agency will have an
3
We decline to disturb the administrative judge’s jurisdictional finding, which neither
party has challenged on review.
5
opportunity to show by clear and convincing evidence that it would have taken
the same personnel action even in the absence of the protected activity. Id.Personnel Action
¶10 In her initial decision, the administrative judge addressed two alleged
personnel actions—the 5-day suspension and the letter of performance
counseling. ID at 16-18. She found that both of these were “personnel actions”
under 5 U.S.C. § 2302(a)(2). ID at 3-4. The administrative judge fully
adjudicated the appellant’s claim as to the 5-day suspension, but she found that
the appellant had failed to exhaust his administrative remedies concerning the
letter of counseling. ID at 15-18.
¶11 On review, the appellant does not challenge the administrative judge’s
finding on the exhaustion issue. Nevertheless, we modify the initial decision to
find that the letter of counseling did not constitute a personnel action or threat to
take a personnel action within the meaning of 5 U.S.C. § 2302(a)(2) because it
did not constitute formal discipline, there is no indication that it was placed in the
appellant’s personnel file, and it did not warn the appellant of any possible future
disciplinary or performance actions. IAF, Tab 33 at 285-88; see Special
Counsel v. Spears, 75 M.S.P.R. 639, 670 (1997) (declining to find that an oral
counseling was a personnel action); cf. Campo v. Department of the Army,
93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding a memorandum of warning that included a
threat of future disciplinary action was a personnel action).
Protected Activity and Contributing Factor
¶12 In her initial decision, the administrative judge identified two alleged
protected disclosures. She found that the November 19, 2012 conversation in
which the appellant told his supervisor that she was unfairly singling out one of
the appellant’s subordinates for discipline was protected because he reasonably
believed his supervisor was abusing her authority. ID at 15. The administrative
judge found that the appellant’s December 18, 2012 meeting with an IG official
6
regarding his proposed suspension was not protected. Id. She also found that
neither disclosure was a contributing factor in the 5-day suspension. ID at 16-17.
The appellant does not challenge these findings on review. Nevertheless, we
modify the administrative judge’s analysis as follows.
¶13 First, although we agree with the administrative judge that the appellant’s
November 15, 2012 disclosure was protected, we disagree that it was not a
contributing factor in his 5-day suspension. The administrative judge found that
the disclosure was not a contributing factor in the suspension because it was the
appellant’s second-level supervisor who resolved to take disciplinary action
against the appellant, and he was not even aware of the November 19, 2012
disclosure. ID at 16. The appellant’s first-level supervisor is the one who issued
the proposal letter, and she did so within 1 month of the appellant’s disclosure to
her. IAF, Tab 5 at 43-46.
¶14 The most common way of proving the contributing factor element is the
“knowledge/timing test.” Scoggins v. Department of the Army, 123 M.S.P.R. 592,
¶ 21 (2016). Under that test, an appellant can prove that his disclosure was a
contributing factor in a personnel action through evidence that the official taking
the personnel action knew of the whistleblowing disclosure and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.Once an appellant has satisfied the knowledge/timing test, he has demonstrated
that a protected disclosure was a contributing factor in a personnel action. Id.The facts here are sufficient to establish the contributing factor element under the
knowledge/timing test of 5 U.S.C. § 1221(e)(1). Although the appellant’s
first-level supervisor may have issued the proposal at the direction of someone
else who was unaware of the disclosure, this fact is irrelevant to the contributing
factor analysis and goes instead to the agency’s affirmative defense, which is
discussed below. See Bradley v. Department of Homeland Security, 123 M.S.P.R.
547, ¶ 15 (2016) (observing that an appellant may rely on an official’s
7
constructive knowledge of a protected disclosure to prove that it was a
contributing factor in a personnel action by demonstrating that an individual with
actual knowledge of the disclosure influenced the official who took the action).
¶15 Second, we disagree with the administrative judge that the appellant’s
December 18, 2012 meeting at the IG’s office was not protected. The
administrative judge found that this meeting was not a protected disclosure
because the appellant’s primary purpose was to seek assistance in challenging the
proposed suspension rather than to report any wrongdoing. ID at 15. As
pertinent here, the Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.
§ 2302(f)(1)(C)), amended the Whistleblower Protection Act by providing that an
individual’s “motive for making the disclosure” does not exclude it from
protection. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 3 (2014). 4
Further, the WPEA expanded the Board’s jurisdiction in IRA appeals to include
claims of reprisal for “cooperating with or disclosing information” to an IG,
activity which is protected under 5 U.S.C. § 2302(b)(9)(C). WPEA, Pub. L. No.
112-199, § 101(b)(1)(A), 126 Stat. 1465, 1465 (codified at 5 U.S.C. § 1221(a)).
Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure
of information to the IG or OSC is protected regardless of its content as long as
such disclosure is made in accordance with applicable provisions of law.
Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. We therefore find that
the appellant’s December 18, 2012 meeting at the IG’s office was protected
activity, without reaching the issue of whether any disclosures he made in the
meeting were protected.
¶16 Third, we agree with the administrative judge that the appellant’s
December 18, 2012 meeting was not a contributing factor in his 5-day suspension,
but we disagree with her reasoning. Specifically, the administrative judge found
4
We have applied the WPEA to this appeal because the personnel action at issue
occurred after the WPEA’s effective date. IAF, Tab 5 at 21; see Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 51.
8
that the timing of the meeting precluded it from being a contributing factor in the
suspension because the meeting occurred after the proposal was issued. ID at 17.
A disclosure that occurs after the personnel action at issue was taken cannot be
considered a contributing factor in that personnel action. Sherman v. Department
of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015). However, the meeting
occurred before the final decision was made, and thus, the personnel action was
merely contemplated and in preparation before the appellant’s second-line
supervisor became aware of the disclosure. Id., ¶¶ 3-4, 9-11 (remanding to
determine whether an appellant’s performance evaluation was completed before
or after the appellant’s rating officials learned of his disclosure). Thus, the
timing alone does not preclude this meeting from being a contributing factor in
the January 16, 2013 suspension decision. IAF, Tab 5 at 20-21. Nevertheless,
there is no evidence that the deciding official knew, or was influenced by anyone
who knew, about the appellant’s meeting with the IG. Indeed, the IG informed
the appellant that his contact with that office would remain confidential. IAF,
Tab 51 at 42. For that reason, we find that the appellant has not established that
the deciding official had actual or constructive knowledge of the meeting.
Moreover, the record does not support a finding that the appellant established
contributing factor by another prescribed method. See Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 15 (2012) (outlining that if an appellant does not
prove contributing factor by way of the knowledge/timing test, other evidence
should be considered, such as the strength or weakness of the agency’s reasons
for taking the action, whether the whistleblowing was directed at the proposing or
deciding officials, and whether these individuals had a desire or motive to
retaliate against the appellant).
¶17 Fourth, we modify the initial decision to address an argument that the
appellant raises on review, and which he appeared to raise below, but which the
administrative judge did not address. Specifically, the appellant argues that his
suspension was based on his refusal to obey his supervisor’s order to lower his
9
subordinates’ performance ratings. IAF, Tab 45 at 4; PFR File, Tab 1. He claims
that this order would have required him to violate a directive regarding the
agency’s Performance Plan and Appraisal System, as well as the applicable
collective bargaining agreement, and the agency was therefore prohibited from
disciplining him for this under 5 U.S.C. § 2302(b)(9)(D). IAF, Tab 45 at 4; PFR
File, Tab 1. However, at the time of the personnel action at issue, 5 U.S.C.
§ 2302(b)(9)(D) made it a prohibited personnel practice to take a personnel action
in retaliation for refusing to obey an order that would have required the employee
to violate a “law.” The U.S. Court of Appeals for the Federal Circuit interpreted
the term “law” in this subsection to mean “statute.” Rainey v. Merit Systems
Protection Board, 824 F.3d 1359, 1361-65 (Fed. Cir. 2016). It was not until the
instant appeal already was pending that subsection (b)(9)(D) was amended to
cover orders that would require an employee to violate a “law, rule, or
regulation.” Follow the Rules Act (FTRA), Pub. L. No. 115-40, § 2, 131 Stat.
861 (2017); Fisher, 2023 MSPB 11, ¶ 12. The Board has found that the
amendments to subsection (b)(9)(D) should not be applied to Board appeals that
already were pending prior to the enactment of the FTRA. Fisher, 2023 MSPB
11, ¶¶ 13-19. Because the Performance Plan and Appraisal System directive and
the collective bargaining agreement are not statutes, and the appellant has not
identified any statute that his supervisor’s order would have required him to
violate, we find that he has not established that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(D). 5
Clear and Convincing Evidence
¶18 Having found that the appellant met his burden to prove by preponderant
evidence that his November 11, 2012 disclosure was a contributing factor in his
5-day suspension, we now turn to whether the agency proved by clear and
convincing evidence that it would have suspended the appellant absent his
5
We have reviewed the other relevant legislation enacted during the pendency of this
appeal and find that none further impact the outcome.
10
disclosure. In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board will consider the totality of the circumstances,
including the following factors: the strength of the agency’s evidence in support
of its action; the existence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
¶19 In this case, the administrative judge considered the Carr factors and found
that the agency proved by clear and convincing evidence that it would have issued
the 5-day suspension notwithstanding the appellant’s November 19, 2018
disclosure to his supervisor. ID at 17-18. She found that the agency’s evidence
in support of the suspension was strong. Id. She reasoned that the appellant
falsely reported the ratings for two of his subordinates, and surreptitiously
attempted to change the rating for a third subordinate despite an instruction that
he not do so. Id. She further determined that the appellant’s supervisors did not
have a strong motive to retaliate. ID at 18. She found a lack of evidence that
there were any other supervisors like the appellant who engaged in the same type
of misconduct. Id.; see Siler v. Environmental Protection Agency, 908 F.3d 1291,
1299 (Fed. Cir. 2018) (holding that in the absence of relevant comparator
evidence, Carr factor 3 cannot favor the Government). The appellant does not
challenge these findings on review, and we find no reason to disturb them.
Other Arguments Raised on Petition for Review
¶20 The appellant argues that the administrative judge abused her discretion in
denying several witnesses who would have testified to his character and
credibility. PFR File, Tab 1 at 4. The administrative judge made only one
credibility finding regarding the appellant. ID at 17-18. The specific finding was
11
that the appellant did not credibly deny that he attempted to change the
performance rating of his third subordinate. Id. The appellant does not challenge
this finding or explain how the disallowed witnesses would have disproved it.
PFR File, Tab 1 at 4. Under the circumstances, we find that the administrative
judge did not abuse her broad discretion to rule on witnesses. IAF, Tab 48; see
Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22, ¶ 12
(2013) (observing that administrative judges have broad discretion to regulate the
proceedings before them, including the discretion to exclude witnesses); 5 C.F.R.
§ 1201.41(b)(8) (including among an administrative judge’s powers the authority
to rule on witnesses). Nor has the appellant shown how he was harmed by these
rulings. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)
(finding that an administrative judge’s procedural error is of no legal consequence
unless it is shown to have adversely affected a party’s substantive rights).
¶21 The appellant also argues that his second-level supervisor made several
false or inconsistent statements during the hearing about why and how some of
the appellant’s subordinates earned the ratings that the appellant’s first-level
supervisor directed him to assign. PFR File, Tab 1 at 6-8. For example, the
appellant argues that, contrary to his second-level supervisor’s testimony, “it is
not permissible to usurp the judgment of the immediate supervisor” in the rating
process. Id. at 7. The appellant asserts that the lower ratings selected by his
supervisors are suspect because his second-level supervisor “never reviewed the
work of a single employee.” Id. at 6. We find that these arguments do not
provide a sufficiently sound basis to overturn the administrative judge’s finding
that the appellant’s second-level supervisor credibly denied a retaliatory motive
during his testimony. ID at 18; see Haebe v. Department of Justice, 288 F.3d
1288, 1301 (Fed. Cir. 2002).
¶22 Accordingly, we affirm the initial decision denying corrective action, as
modified.
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NOTICE OF APPEAL RIGHTS 6
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.
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:
6
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. 7 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.
7
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.