Kim LaForge v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIM S. LAFORGE, DOCKET NUMBER
Appellant, PH-0752-15-0435-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 1, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
W. Scott LaForge , Carolina, Puerto Rico, for the appellant.
Aaron Baughman , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her separation by involuntary workforce reduction (IWR). 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 or the erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 to find
that the Board has jurisdiction over the appellant’s allegation of age
discrimination, and to adjudicate that allegation, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed in the agency’s Office of Security Operations
(OSO) as a Transportation Security Manager (TSM), SV-1801-I, at the Barnstable
Municipal Airport located on Cape Cod, Massachusetts. Initial Appeal File
(IAF), Tab 8 at 29. In December 2014, three of the appellant’s managers visited
her to discuss an upcoming IWR. IAF, Tab 30, Hearing Compact Disc (HCD)
(testimony of the appellant). The managers told her that her position would be
eliminated, and she was being reassigned to a vacant TSM position at Boston’s
Logan International Airport. Id. The reassignment, however, did not occur.
3
In March 2015, the agency implemented the IWR 2 within OSO to abolish a
number of TSM positions that it determined were no longer necessary. IAF,
Tab 8 at 74-77. The agency sent out notices to affected TSMs, including the
appellant. Id. at 70; IAF, Tab 30, HCD (testimony of the appellant). The notice
informed the appellant that she would be required to find a new position during
one of two stages of the IWR. During stage one, she would be able to request
voluntary placement into 1 of 12 vacant positions in the Boston hub/spoke, at or
below her current pay band, subject to agency determination of her qualifications.
IAF, Tab 8 at 68, 70-71. If the appellant did not secure a position during stage
one, she would have the opportunity to move onto stage two and compete for
vacancies on a nationwide level. Id. at 70-73.
The stage one list of 12 vacant positions did not include the TSM position
referenced by the three agency managers who met with the appellant prior to
issuance of the notices. Id. at 68. The appellant chose three of the vacant
positions listed in stage one for voluntary placement–Supervisory Human
Resources (HR) Specialist, Nonsupervisory HR Specialist, and Assistant Federal
Security Director-Generalist (AFSD-G). Id. at 67-68. The agency informed the
appellant that she was not qualified for the HR positions, and that, although she
was qualified for the AFSD-G position, she was not eligible because that position
was in a professional series, with more opportunities for pay band promotion than
the series she currently occupied. Id. at 67. The lengthy list of stage two
vacancies that the appellant would have to compete for, however, included the
TSM position in Boston, and the agency selected her to fill it. Id. at 35, 38-59.
2
The agency’s IWR procedures are similar to reduction in force (RIF) procedures;
however, the two procedures are not identical. Title 5 RIF provisions are not applicable
to the TSA. See Garofalo v. Department of Homeland Security, 108 M.S.P.R. 169,
¶¶ 7-8 (2008). Instead, the agency applies its internal IWR policy, Human Capital
Policy No. 351-3. IAF, Tab 8 at 195-218. In this nonprecedential decision, we use the
acronym IWR when the acronym RIF would be used in a separation pursuant to
5 C.F.R. part 351. Despite the fact that Title 5 RIF procedures are inapplicable to the
TSA, the Standard Form 50 effecting the appellant’s separation indicates that the nature
of the action is “separation-RIF.” Id. at 29.
4
The appellant declined the position. Id. at 34. The agency then offered her a
lower-graded Transportation Security Officer position at Barnstable Municipal
Airport. Id. at 33. She also declined the lower-level position, and the agency
separated her from service. Id. at 29-33.
The appellant filed a Board appeal, alleging that she was treated unfairly
during the IWR by not being given the AFSD-G position merely because it was in
a different job series. IAF, Tab 1 at 4. She also alleged that, during an earlier
IWR, employees had been allowed to “jump job series,” id., and that the agency
engaged in age discrimination by not allowing her to do so. IAF, Tab 28 at 3.
The administrative judge found that the agency complied with its
regulations governing reorganization and realignment. IAF, Tab 32, Initial
Decision (ID) at 9-10. Regarding the appellant’s assertion that she was treated
differently from two employees who, during an earlier IWR, were allowed to
circumvent restrictions on what job series they were allowed to transfer into, the
administrative judge found that this prior placement violated agency procedures
and the agency was not required to continue to violate its procedures for the
appellant’s benefit. ID at 9. He also found that the appellant failed to show that
the agency managers actively misled her by telling her that she would be
reassigned to Boston prior to the IWR, or that she mistakenly relied upon
information provided by agency managers regarding her ability to transfer to a
position listed in stage one of the IWR, information that allegedly caused her to
limit her selection of positions on the stage one list, a decision that later turned
out to be detrimental to her interests. ID at 10.
In addition, the administrative judge found that the Board does not have
jurisdiction over the appellant’s allegation of age discrimination. He found that
her discrimination allegation was not based on a claim that the agency separated
her while retaining younger employees impacted by the reassignment. ID at 11.
Rather, her claim was based on her assertion that the agency permitted two
younger employees to circumvent restrictions on what job series they were
5
allowed to transfer into during an earlier IWR, while the agency did not allow her
to do so in her transfer request during phase one of the IWR process. He
characterized the denial of her transfer request as a nonselection, and found that
her discrimination allegation in the nonselection was beyond the scope of the
action over which the Board has jurisdiction, her separation. ID at 11-12.
In her petition for review, the appellant asserts that the administrative
judge erred in denying two of her requested witnesses and that he was biased
against her in his description of the facts and rulings on witnesses. 3 Petition for
Review (PFR) File, Tab 2 at 8, 10-11. 4 She also asserts, as she did below, that
she was deceived by her supervisors into believing that she would get any
position she requested during stage one, including the AFSD-G position. Id.
at 8-11. She asserts that she had been performing the AFSD-G position duties for
more than 9 years and that that position still exists at Barnstable. 5 Id. at 9. The
agency has filed a response to the petition for review. PFR File, Tab 4.
3
On review, the appellant states that the agency did not provide some documents to her
during the processing of her appeal that she requested about jobs that were provided to
other employees. PFR File, Tab 2 at 8. She states, however, that the information that
she sought through the documents was provided through the testimony of the agency’s
witness. Id. She does not indicate that she sought this information through discovery
and does not explain how her case was harmed by the agency’s failure to provide these
documents.
4
The appellant filed two identical petitions, one timely filed by facsimile transmittal,
PFR File, Tab 1, and one by e-filing, PFR File, Tab 2. For ease of reference, we cite to
the e-filed petition for review at Tab 2.
5
The appellant also alleges that the agency violated 5 U.S.C. § 2302(b)(4), which
prohibits deceiving or willfully obstructing any person regarding such person’s right to
compete for employment, and section 2302(b)(6), which prohibits granting any
preference or advantage not authorized by law, rule, or regulation to any employee or
applicant for employment to improve or injure the prospects of any particular person for
employment. PFR File, Tab 1 at 11. The appellant raises these allegations for the first
time on review. IAF, Tab 28 (Summary of Prehearing Conference). We decline to
consider this argument because the appellant has not shown that it is based on new and
material evidence not previously available despite her due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
6
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not shown that the administrative judge was biased.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540 (1994)); Smets v.
Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011), aff’d, 498 F. App’x 1(Fed. Cir. 2012). The appellant’s allegations on review, which do not relate to
any extrajudicial conduct by the administrative judge, do not satisfy that standard.
The administrative judge did not abuse his discretion in denying two of the
appellant’s witnesses.
The appellant requested two witnesses to testify about the emotional impact
that the IWR process had on her, about the unfairness of the process, and about
how agency employees were not informed and were confused during the IWR
process. IAF, Tab 23 at 13-14. The administrative judge denied these witnesses,
finding that such testimony was not relevant to the issue of whether the agency
followed its internal IWR procedures. IAF, Tab 28 at 6-7. On review, the
appellant contends that the administrative judge’s decision to deny these
witnesses was detrimental to her case. PFR File, Tab 2 at 8.
It is well established that administrative judges have broad discretion to
regulate the proceedings before them, including the discretion to exclude
witnesses. See Fritz v. Department of Health and Human Services , 87 M.S.P.R.
287, ¶ 15 (2000); Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985)
(stating that an administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
7
testimony would be relevant, material, and nonrepetitious). Here, the appellant
has failed to show that the denied witnesses would have given testimony relevant
to the agency’s application of the IWR procedures to her. To the extent that they
could have corroborated the appellant’s assertions that agency managers did not
provide sufficient information when conducting the IWR and that employees were
confused about the IWR process, she herself had the opportunity to testify about
the IWR process and employees’ understanding of it. HCD (testimony of the
appellant). She also elicited testimony from agency officials who implemented
the IWR. HCD (testimony of Human Resources Specialist). We therefore find
that the administrative judge did not abuse his discretion in denying these
witnesses.
The Board’s scope of review of the IWR is the same as its scope of review in a
reduction in force (RIF) under 5 C.F.R. part 351.
The Board has jurisdiction over an appeal challenging the RIF separation of
an excepted-service TSA employee. See Wilke v. Department of Homeland
Security, 104 M.S.P.R. 662, ¶ 16 (2007). However, under 49 U.S.C. § 114(n),
TSA has the authority to modify the RIF procedures applicable to its
excepted-service employees, id., ¶ 22, and it has done so, implementing
procedures for an IWR, IAF, Tab 8 at 195-218 (Human Capital Management
(HCM) Policy No. 351-3); see Garofalo v. Department of Homeland Security ,
108 M.S.P.R. 169, ¶¶ 7-12 (2008).
The U.S. Court of Appeals for the Federal Circuit has held that “[a]n
agency is accorded wide discretion in conducting a [RIF]; absent a clear abuse of
that discretion, a substantial departure from applicable procedures, a
misconstruction of governing statutes, or the like, we do not upset a final agency
decision.” Cooper v. Tennessee Valley Authority, 723 F.2d 1560, 1562 (Fed. Cir.
1983) (quoting Dancy v. United States, 229 Ct. Cl. 300 (1982)); Garofalo,
108 M.S.P.R. 169, ¶ 15. We recognize that the IWR procedures at issue here
differ from traditional RIF procedures. However, we find that, even in a case
8
such as this, when the workforce reduction is implemented under unique
procedures, the Board is afforded only a limited scope of review. See Pettis v.
Department of Health and Human Services, 803 F.2d 1176, 1179 (Fed. Cir.
1986); Cooper, 723 F.2d at 1562; Garofalo, 108 M.S.P.R. 169, ¶ 5. We have
provided the appropriate scope of review in this case.
The agency properly applied its IWR procedures to the appellant’s TSM position.
The appellant does not dispute that HCM Policy No. 351-3 contains the
standards by which the agency’s action in this appeal should be evaluated. HCM
Policy No. 351-3 encourages management officials to consider a number of
options before initiating IWR separations. IAF, Tab 8 at 198. These options
include implementing hiring freezes, encouraging voluntary actions such as
resignations or retirements, directing the reassignment of employees to other
locations, and offering employees within affected organizations the opportunity to
volunteer for IWR separations. Id. at 198-99. The policy does not require any of
the enumerated options to be used in any particular case, however. Id. Once
employees are identified for separation pursuant to IWR procedures, HCM Policy
No. 351-3 authorizes management officials to offer those employees other
positions within TSA, and states that, before alternative positions are offered, the
employees must be fully qualified for placement in the alternative positions. Id.
at 205. Such offers are not required, however. Id. The policy also states that
employees identified for separation do not have assignment rights (bump or
retreat rights). Id. The IWR procedures are applied to employees based on their
positions of record. Id. at 200.
Although the appellant argued that she had been performing the AFSD -G
position duties for years before the agency initiated the IWR at issue, that job was
not her position of record. HCM Policy No. 351-3 defines “position of record”
as:
9
The employee’s permanent position, as documented on the
Notification of Personnel Action (SF-50 or equivalent), the current
job description, and any other pertinent job documentation for the
employee’s current, permanent position. The position of record is
defined by the employee’s permanent pay band, occupational
category, job series, work schedule type, and any other conditions
that determine coverage under human capital management systems.
Id. at 197. A position to which an employee is temporarily assigned, i.e.,
detailed, acting, or temporarily promoted, is not considered the position of record
for that position. Id. The record establishes that the appellant’s position of
record was TSM SV-1801-I. Id. at 29. Thus, the agency correctly used that
position in determining the appellant’s proper placement during the IWR.
The appellant’s TSM position was in the I-band. Id. In the agency’s notice
of opportunity to request voluntary placement, it stated that stage one placements
only would be to positions at the same pay band and with the same pay band
opportunity or to a lower pay band with no greater opportunity than previously
held. Id. at 70. The appellant requested voluntary placement into the three
I-band positions on the vacancy list provided, including the AFSD -G position.
Id. at 68. The agency explained to the appellant, however, that, although she
qualified for the position, she was ineligible for placement in it under
noncompetitive procedures. Id. at 67. The agency further explained that the
appellant’s TSM position had the promotion potential to the I -band, while the
AFSD-G position was in the professional category and had the promotion
potential of a higher level, the L-band. Id. at 64-65. The agency stated that its
Management Directives/Handbook provides that an employee must compete for
entry into a different job category that has a higher promotion potential. Id.
at 64. The agency indicated that it listed the AFSD -G position on the stage one
list that the appellant received because other TSMs, who also received the list,
may have held professional category positions in the past and thus might have
been eligible for placement into that job category without competition. Id. The
agency’s explanation for the appellant’s nonselection into the AFSD -G position is
10
consistent with the official information that it provided the appellant regarding
stage one of the IWR. This determination was within the agency’s discretion,
i.e., during stage one, only making placements to positions at the same pay band
and with the same pay band opportunity. IAF, Tab 8 at 70; Cooper, 723 F.2d
at 1562. We therefore disagree with the appellant that the agency misled her into
believing that she would get any position she requested during phase one,
including the AFSD-G position.
The Board does have jurisdiction over the appellant’s claim of age discrimination.
The appellant contended below that the agency unfairly failed to offer her
reassignment to a vacant AFSD-G position during stage one of the IWR process,
i.e., the offer of vacant positions, based on her age, and thus the agency
implemented HCM Policy No. 351-3 discriminatorily. As noted above, the
administrative judge treated the appellant’s claim as an allegation of nonselection
for the AFSD-G position, rather than as an allegation of discrimination in the
conduct of the IWR. As explained below, however, under the circumstances of
this case, the appellant’s claim that she was not offered the vacant AFSD -G
position because of her age rises to an allegation of discrimination in the conduct
of the IWR.
As noted above, HCM Policy No. 351-3 does not require the offer of vacant
positions to employees identified for potential separation. It states that “[a]n
employee whose position is eliminated and who is identified for potential
separation may be offered another vacant TSA position.” IAF, Tab 8 at 205
(emphasis in original). However, the agency’s use of this alternative at stage one
of the IWR makes it part of the IWR. As such, any improper motivation in
extending the offers of vacant TSA positions during the IWR, including any age
discrimination in violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 631, 633a, may taint the IWR. Cf. Decker v. Department
of Health and Human Services, 40 M.S.P.R. 119, 127 (1989) (finding that, even
though an agency establishes that a RIF was conducted for a valid management
11
reason, its improper motivation will taint the RIF). We therefore disagree with
the administrative judge that the appellant’s nonselection for the AFSD -G
position was a nonselection outside of the IWR process.
In Garofalo, the appellant raised a claim of age discrimination in his
separation under IWR procedures. The Board found that, because the record was
fully developed, the inquiry was whether Mr. Garofalo met his ultimate burden of
proving that his age was a determinative factor in the action. Thus, the Board
reviewed all of the evidence to determine whether the agency intentionally
discriminated against Mr. Garofalo. Garofalo, 108 M.S.P.R. 169, ¶ 19; Jackson
v. U.S. Postal Service, 79 M.S.P.R. 46, 51-52 (1998). Here, the record is fully
developed. Thus, we have reviewed all the evidence to determine whether the
appellant established her allegation of age discrimination.
In Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 (2012), the Board
held that a Federal employee may prove age discrimination by showing that age
was “a factor” in the personnel action, even if it was not a but-for cause. Id., ¶ 7.
In this case, the appellant has provided no evidence to support her
allegation that her age was a factor in the agency’s decision. She contends that,
during an earlier IWR, the agency allowed two similarly situated younger
employees to transfer to positions with greater promotion potential, but because
of her age, it did not afford her similar treatment. However, the appellant has
provided no evidence to support her assertion that this difference in treatment was
motivated by age discrimination. See Wingate, 118 M.S.P.R. 566, ¶ 9 (finding
that the appellant’s speculation about the agency’s motives does not establish that
age was a factor in the agency’s actions). Additionally, the violation of the rule
did not relate to the agency’s actions in the current IWR that resulted in the
appellant’s separation, but related to actions in a different IWR that occurred a
year earlier. Because the appellant’s evidence is insufficient to establish that her
age was a factor in the agency’s decision not to transfer her into the vacant
12
AFSD-G position, we find that she failed to prove her claim of age
discrimination. 6
Accordingly, we affirm the initial decision, as modified by this Final
Order.
NOTICE OF APPEAL RIGHTS 7
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.
6
Because the appellant failed to show that her age was a motivating factor in the
agency’s decision to separate her, we do not reach the question of whether age was a
but-for cause of her separation. See Johnson v. Department of Veterans Affairs,
2023 MSPB 9, ¶ 5 n.2
7
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
(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:
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
14
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
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:
15
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
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. 8 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
8
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
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.
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