James Carmichael v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES ANDREW CARMICHAEL, DOCKET NUMBER
Appellant, DC-1221-15-0840-W-1
v.
DEPARTMENT OF VETERANS DATE: November 9, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
M. J. Euchler, Esquire, Virginia Beach, Virginia, for the appellant.
Timothy O’Boyle, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the follow ing
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrativ e
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 clarify the appellant’s status and to clarify that the agency, and
not the appellant, has the burden of proof regarding evidence that it takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated, we AFFIRM the initial decision.
BACKGROUND
¶2 The agency appointed the appellant to the excepted-service position of
Clinical Pharmacist. Initial Appeal File (IAF), Tab 7 at 27. 2 Upon the
recommendation of the Chief of Pharmacy, the Human Resources Officer
terminated the appellant less than 1 year after his appointment and prior to him
2
The administrative judge referred to the appellant as a probationary employee. IAF,
Tab 102, Initial Decision (ID). This term refers to individuals who are serving a
probationary period and, unlike the appellant, are in the competitive service and subject
to 5 C.F.R. § 315.806. Instead, the appellant, a nonpreference eligible who was not
serving an initial appointment pending conversion to the competitive service, was an
excepted-service appointee under 38 U.S.C. § 7401(3) who had not completed the
requisite 2-year trial period for becoming an “employee” pursuant to 5 U.S.C.
§ 7511(a)(1)(C). See Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210,
¶ 12 (2009); IAF, Tab 7 at 27. Any error by the administrative judge in referring to the
appellant as a probationary employee is harmless because it has no effect on his
substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).
3
completing the applicable trial period. 3 Id. at 10-12. After exhausting his
administrative remedies with the Office of Special Counsel, the appellant filed
the instant IRA appeal and requested a hearing. IAF, Tab 1. The administrative
judge conducted a hearing and then issued an initial decision denying the
appellant’s request for corrective action. IAF, Tab 102, Initial Decision (ID).
¶3 The appellant has filed a petition for review, and the agency has responded
in opposition to his petition. Petition for Review (PFR) File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 On review, the appellant challenges the administrative judge’s finding that
the agency established by clear and convincing evidence that it would have
terminated him absent his protected disclosures. PFR File, Tab 3 at 9-14. The
administrative judge found that the appellant satisfied the proof requirement for
establishing that his protected disclosures were a contributing factor in his
termination because he made numerous disclosures between March 3, 2014, and
January 30, 2015, and he was terminated less than a year later, on February 3,
2015. ID at 50. However, she found that the agency’s evidence in support of its
action was extremely strong, the acting agency officials did not have a strong
motive to retaliate, and the appellant failed to identify similarly situated
employees who were not terminated. ID at 52-62. She thus concluded that the
agency showed that it would have terminated the appellant regardless of his
protected disclosures. ID at 62. For the reasons discussed below, we agree.
The appellant established a prima facie case of whistleblower retaliation.
¶5 To establish a prima facie case of retaliation for whistleblowing under the
Whistleblower Protection Enhancement Act of 2012, the appellant must prove, by
3
The appellant’s second-line supervisor left the agency in November 2014. Hearing
Transcript (HT) Day 1 at 346 (testimony of the appellant’s second-line supervisor).
After the appellant’s second-line supervisor left, the Chief of Pharmacy became his
second-line supervisor and recommended the appellant’s removal. HT Day 1 at 240,
303 (testimony of the Chief of Pharmacy).
4
preponderant evidence, that he made a protected disclosure or engaged in
protected activity that was a contributing factor in the agency’s decision to take
or fail to take a personnel action. 5 U.S.C. §§ 1221(e)(1), 2302(a), (b)(8),
(b)(9)(A)(i), (B), (C), or (D); 4 Webb v. Department of the Interior, 122 M.S.P.R.
248, ¶ 6 (2015). He may meet this burden through circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 18
(2015). Here, the administrative judge found, and we agree, that the appellant
established, through the aforementioned knowledge-timing test, that several of
the appellant’s protected disclosures were a contributing factor in the agency’s
decision to terminate him. ID at 49-50.
The agency proved by clear and convincing evidence that it would have
terminated the appellant absent his protected disclosures.
¶6 If the employee meets his burden of showing that the protected disclosures
were a contributing factor in the relevant personnel action, the Board then will
consider whether the agency has proven that it would have taken or failed to take
the same personnel action absent his whistleblowing. Campbell v. Department of
the Army, 123 M.S.P.R. 674, ¶ 12 (2016). In determining whether an agency has
met its burden of proving that it would have terminated the appellant absent his
whistleblowing, the Board will consider the following factors (Carr factors):
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11;
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999). 5 The Board does not view the Carr factors as discrete elements and
instead will weigh the factors together to determine whether the evidence is clear
and convincing as a whole. Campbell, 123 M.S.P.R. 674, ¶ 12.
The agency presented strong evidence in support of the termination action.
¶7 The administrative judge found that the agency provided strong evidence in
support of the appellant’s termination, including by showing that he was resistant
to his supervisor and lost his temper several times. ID at 58. The appellant
challenges this finding. PFR File, Tab 3 at 11-12. He asserts that his dispute
with an IV Room Technician and the fact that he was upset with his first-line
supervisor when receiving his performance appraisal should not have formed the
basis for his termination because the incidents were not mentioned in his
performance appraisal, which his second-line supervisor upgraded to an excellent
rating after he contested the initial rating. Id. First, the incident concerning his
receipt of his performance appraisal occurred outside of the rating period , and it
would have been inappropriate for the supervisor to consider the incident for that
performance appraisal. Second, the appellant’s first-line supervisor and the
appellant both testified that, when the appellant initially received his appraisal,
she informed him that his interactions with his coworkers were problematic, and
we find it reasonable that those concerns were not reduced to writing. Hearing
Transcript (HT) Day 1 at 30-31 (testimony of the appellant’s first-line
supervisor); HT Day 2 at 314 (testimony of the appellant); IAF, Tab 38 at 32.
5
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). We are unaware of
other circuit courts that have considered this issue.
6
Third, although the appellant’s second-line supervisor raised the appellant’s
rating to excellent, IAF, Tab 38 at 32, he properly viewed the incidents to be
conduct, rather than performance-related, and, therefore, did not consider them in
assessing the appellant’s performance during the rating period, HT Day 1
at 365-66, 372, 375-76, 378 (testimony of the appellant’s second-line supervisor).
Accordingly, we find no reason why the appellant’s raised performance
evaluation would detract from the agency’s strong evidence in support of his
termination based on conduct unbecoming. See McCarthy v. International
Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 61 (2011) (finding that the
appellant’s conduct was problematic and that the agency had a strong basis for
directing his termination during his trial period), aff’d, 497 F. App’x 4 (Fed.
Cir. 2012).
The acting agency officials did not have a strong motive to retaliate
against the appellant.
¶8 The appellant next argues that his first-line supervisor should not have had
the authority to terminate him because she was the subject of his disclosures.
PFR File, Tab 3 at 12. We disagree, as those decisions are within an agency’s
discretion. However, the Board will consider whether an official was the subject
of the appellant’s disclosures in determining the strength of an agency official’s
motive to retaliate. See Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 16
(2013). Here, the administrative judge found that the appellant’s first-line
supervisor was the subject of only one of the appellant’s disclosures, which the
administrative judge found was not protected. ID at 7-8, 46. The administrative
judge also found that the supervisor was receptive to his criticism about other
issues. ID at 59-60. For instance, she directed that the IV Room Technician be
retrained regarding rules in the IV room after the appellant complained about her
noncompliance and also included him on a working group about concerns in the
IV room. HT Day 1 at 32 (testimony of the appellant’s first-line supervisor).
Thus, we find that she was receptive to at least some of the appellant’s comments.
7
¶9 We have considered that the appellant’s second-line supervisor received
disclosures from him, which related to standards that the agency was required to
meet. HT Day 1 at 347, 350 (testimony of the appellant’s second-line
supervisor). However, there is no basis for finding that these emails caused a
strong motive to retaliate. Further, we defer to the administrative judge’s
conclusion that the Chief of Pharmacy had little motive to retaliate because she
testified credibly that she welcomed disclosures and that they provided a means
of learning about problems. ID at 59-60; see Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367, 1372 (Fed. Cir. 2016); IAF, Tab 18 at 10-17, Tab 72
at 24-26.
¶10 The appellant next argues that the agency did not demonstrate that it would
have terminated him absent his disclosures because the Human Resources Officer
testified that the Chief of Pharmacy deliberately failed to tell her about the
disclosures and that, if she knew about the disclosures, she would not have
terminated him. PFR File, Tab 3 at 9-10; HT Day 1 at 337, 342, 344 (testimony
of the Human Resources Officer). The appellant cites to her testimony, which he
asserts establishes that she now questions the veracity and intent of the officials
who requested his termination. PFR File, Tab 3 at 9; HT Day 1 at 344 (testimony
of the Human Resources Officer).
¶11 To the extent that the appellant is arguing that the Human Resources
Officer’s testimony demonstrates that agency officials concealed his protected
disclosures despite the fact that this information normall y would be made
available, this could indicate a retaliatory motive. However, the administrative
judge found, based in part upon the testimony of the appellant’s first-line
supervisor and the Chief of Pharmacy, that agency officials did not have a strong
motive to retaliate. ID at 60. We defer to these findings, which are implicitly
based upon these witnesses’ demeanor, and agree that the agency officials did not
have a strong motive to retaliate. See Purifoy, 838 F.3d at 1372. Furthermore, in
a whistleblower retaliation case, the Board ultimately must determine whether the
8
agency would have taken the same action absent the appellant’s protected
disclosures. Campbell, 123 M.S.P.R. 674, ¶ 12. The testimony of the Human
Resources Officer is supportive of this ultimate conclusion because she testified
that she terminated the appellant without actual knowledge of his disclosures.
¶12 The appellant next asserts that the agency attempted to further its retaliatory
motive by collecting complaints from his coworkers to support his termination.
PFR File, Tab 3 at 13. However, the Procurement Narcotics Purchaser Pharmacy
Supervisor (S.B.) testified that employees had complained to him about the
appellant’s behavior and that he told the employees that they should put their
complaints in writing. HT Day 1 at 418-20 (testimony of S.B.). This testimony
is supported by the testimony of the Chief of Pharmacy, who confirmed that the
employees confided in S.B., who would pass on their written complaints to the
Chief of Pharmacy. HT Day 1 at 258-59, 276 (testimony of the Chief of
Pharmacy). The IV Program Manager stated that he sent a written statement
complaining about the appellant without being instructed to do so. HT Day 2
at 87-91 (testimony of the IV Program Manager). The appellant’s general
assertions do not contradict this evidence and testimony. Consequently, we find
that the evidence reflects that the agency was not collecting complaints from the
appellant’s coworkers simply to support its agenda of terminating him because of
his protected disclosures. 6
6
On review, the appellant has submitted a consent order, entered into approximately
1 month after the initial decision, in which S.B. agreed to the suspension of his
pharmacy license. PFR File, Tab 3 at 16-22. The Board may grant a petition for review
when the petitioner establishes that new and material evidence is available that, despite
his due diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d)(1).
Evidence is material when it is of sufficient weight to warrant an outcome different
from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980). To the extent that the appellant has submitted this order to impeach S.B.’s
credibility, evidence submitted on review merely to impeach a witness’s credibility
generally is not new and material, and we have not considered it as such. Bucci v.
Department of Education, 42 M.S.P.R. 47, 55 (1989). Nevertheless, even if we did
consider this evidence, it does not affect our determination that the agency established
by clear and convincing evidence that it would have terminated the appellant absent his
9
¶13 We further consider that the officials taking the personnel action against the
appellant did not suffer ramifications as a result of his disclosures. ID at 60; HT
Day 1 at 199 (testimony of the appellant’s first-line supervisor), 319 (testimony
of the Chief of Pharmacy); see Runstrom v. Department of Veterans Affairs,
123 M.S.P.R. 169, ¶ 17 (2016). We have found, however, that an appellant’s
criticisms, which reflect negatively on employees in their capacities as managers,
are sufficient to establish retaliatory motive. Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 33 (2013); see also Whitmore v. Department of
Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). Nonetheless, weighing all
evidence, including the testimony of the appellant’s first-line supervisor, his
second-line supervisor, the Chief of Pharmacy, and the Human Resources Officer,
we conclude that the agency did not have a strong motive to retaliate against
the appellant.
We agree with the administrative judge that there are no similarly situated
employees who were not terminated.
¶14 Finally, the appellant argues that the agency treated him more harshly than
another pharmacist with whom he had engaged in an altercation. 7 PFR File,
Tab 3 at 11-12. In considering the discipline imposed in response to the
altercation with the other pharmacist, the administrative judge noted the
testimony of the appellant’s first-line supervisor that she verbally counseled the
other pharmacist but that she treated this employee less harshly than the appellant
because she was unaware of other misconduct in which that pharmacist had
engaged and because the other pharmacist had worked at the agency for a long
protected disclosures. The appellant made disclosures to S.B., and S.B. was involved in
the aftermath of an altercation in which the appellant was involved. However, S.B.
was not involved with taking the personnel action against the appellant, and any
connection of this evidence to the appeal is otherwise extremely remote.
7
The appellant argues that he was treated more harshly than the IV Room Technician.
PFR File, Tab 3 at 11. However, she was a longtime employee who retired. ID at 53.
Accordingly, we find that she was not similarly situated to the appellant.
10
time. ID at 61; HT Day 1 at 193-94 (testimony of the appellant’s first-line
supervisor). We agree with the administrative judge that this employee was not
similarly situated to the appellant given that she was a tenured employee. Thus,
we agree with the administrative judge that the agency did not treat the appellant
more harshly than a similarly situated nonwhistleblower. 8 ID at 61-62.
Nevertheless, we have considered that the agency has otherwise presented no
evidence of similarly situated employees, under which circumstance the Board
has held that the third Carr factor cannot weigh in favor of the agency. Soto,
2022 MSPB 6, ¶ 18.
¶15 Regardless, considering that the agency presented strong evidence in
support of its decision to terminate the appellant during his trial period and the
lack of a strong motive to retaliate against him, we find that the agency proved by
clear and convincing evidence that it would have terminated the appellant absent
his protected disclosures. McCarthy, 116 M.S.P.R. 594, ¶ 66.
NOTICE OF APPEAL RIGHTS 9
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
8
The administrative judge found that the appellant did not identify any other
nontenured employees who engaged in similar misconduct who were not terminated. ID
at 61. We modify the initial decision to clarify that the appellant does not have the
burden of identifying such employees. Instead, it is the agency’s burden to prove that it
would have terminated the appellant absent his protected disclosures, and the Board
will consider any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated in determining whether
the agency has met its burden. Soto, 2022 MSPB 6, ¶¶ 11, 18. Any error in this respect
is harmless because there is no evidence of such employees. See Panter, 22 M.S.P.R.
at 282.
9
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.
11
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 an d
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. Failu re 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:
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.
12
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. ____ , 137 S. Ct. 1975 (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
13
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
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. 10 The court of appeals must receive your
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction e xpired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
14
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 a t 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.uscour ts.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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.