Chase Lentz v. Department of the Interior

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHASE M. LENTZ, DOCKET NUMBER
Appellant, SF-4324-16-0680-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: June 30, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chase M. Lentz, Fresno, California, pro se.
Kevin D. Mack, Esquire and Deborah Smith, Sacramento, California, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA). 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 application of the law to
the facts of the case; the administrative judge’s rulings during either the c ourse of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed a Board appeal alleging that the agency violated
USERRA when his former supervisors at the agency provided negative
employment references to his prospective employers. Initial Appeal File (IAF),
Tab 1. The record reflects that the appellant was employed as a Botanist with the
agency’s Bureau of Land Management (BLM) until his resignation on
February 13, 2015, and that he was rated superior on his performance appraisals
for fiscal years 2007-2012 and fully successful for 2013 and 2014. IAF, Tab 1,
Tab 6 at 28-36, Tab 9, Subtab 4a, Tab 15, Subtab 3. Prior to resigning his
position with the agency, the appellant had engaged in USERRA activity when he
filed a complaint with the Department of Labor (DOL) on December 2, 2014,
alleging that he had been nonselected for various vacancies in violation of
USERRA. IAF, Tab 6 at 6-8. His second-line supervisor knew of his USERRA
3
claim with DOL. The appellant also filed other Board appeals alleging USERRA
violations. Id. at 9-18.
¶3 After resigning from the agency, the appellant applied for numerous
positions, but he was not hired for any position for which his first - or second-line
supervisor gave job references. IAF, Tab 11 at 4, Tab 12 at 6 -7, 44, 62. The
appellant filed a complaint with DOL alleging that his former supervisors had
provided negative job references in reprisal for exercising his rights under
USERRA. IAF, Tab 1, Tab 11 at 8-14. DOL notified the appellant that it found
no evidence that any adverse actions taken were because of his veteran status.
IAF, Tab 1 at 44. The appellant requested a referral of his claim to the Office of
Special Counsel (OSC), which, after investigating his claim, notified him that it
was closing its file. Id. The appellant subsequently filed this appeal. Id. at 39.
¶4 During the adjudication of the appeal, the administrative judge defined the
sole issue as whether the appellant was discriminated against based on his prior
protected USERRA activities when his first- and second-line supervisors provided
job references to the U.S Army Corps of Engineers, BLM, and the Bureau of
Reclamation. 2 IAF, Tab 14 at 2. In an initial decision based on the written record
because the appellant did not request a hearing, the administrative judge found
jurisdiction but denied the appellant’s request for corrective action. IAF, Tab 17,
Initial Decision (ID) at 5-12. Specifically, the administrative judge found that the
appellant failed to prove by preponderant evidence that his protected activity
under USERRA was a motivating or substantial factor in the agency’s actio ns at
issue in this appeal. ID at 5-12.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
2
The summary of the close-of-record conference indicates that the appellant was not
arguing that the negative job references were the result of discrimination based on his
prior service in the military. IAF, Tab 14 at 2.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Under 38 U.S.C. § 4311(b), an agency is prohibited from discriminating in
employment against or taking any adverse employment action against any person
because “he has taken an action to enforce a protection provided by USERRA or
has exercised a right provided for by USERRA.” Kitlinski v. Merit Systems
Protection Board, 857 F.3d 1374, 1381 (Fed. Cir. 2017); Burroughs v.
Department of the Army, 120 M.S.P.R. 392, ¶ 7 (2013). To prevail on the merits
of a claim under 38 U.S.C. § 4311(b), an appellant must prove by preponderant
evidence that his USERRA-protected activity was a substantial or motivating
factor in the agency’s action. Burroughs, 120 M.S.P.R. 392, ¶¶ 5, 7. If the
appellant makes that showing, the agency can avoid liability by demonstrating, as
an affirmative defense, that it would have taken the same action for a valid reason
without regard to his uniformed service. Id. An agency therefore violates
section 4311(b) if it would not have taken the action but for the appellant’s
uniformed service. Id.¶7 Discriminatory motivation under USERRA may be established by direct
evidence or may be reasonably inferred from a variety of factors, including
proximity in time between the employer’s military activity and the adverse
employment action, inconsistencies between the proffered reason and other
actions of the employer, an employer’s expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity, and disparate treatment of certain employees compared to other
employees with similar work records or offenses. Brasch v. Department of
Transportation, 101 M.S.P.R. 145, ¶ 9 (2006).
The administrative judge correctly found that the job references provided by the
first-line supervisor suggest no unlawful hostility or bias based on the appellant’s
prior USERRA activity.
¶8 The record reflects that the appellant’s first-line supervisor supervised him
from August 24, 2014, to February 13, 2015, and that she proposed his 14-day
5
suspension on November 13, 2014. IAF, Tab 15, Subtab 3. The first -line
supervisor provided references for the appellant to the Bureau of Reclamation on
March 2, 2015, to the BLM office in Oregon on March 18, 2015, to the BLM
office in Nevada on June 2, 2015, and to the U.S. Army Corps of Engineers on
April 22, 2015. IAF, Tab 15, Subtabs 3-4.
¶9 On review, the appellant reasserts the numerous challenges he raised below
and he continues to argue that his first-line supervisor provided inaccurate
statements during job references for him in reprisal for his USERRA activity.
PFR File, Tab 1 at 7-17. The appellant also argues that the administrative judge
erred by not addressing the inconsistencies between the five separate job
references she provided to his prospective employers. Id.¶10 We find that the administrative judge thoroughly considered the five
separate job references provided by the appellant’s first -line supervisor. ID
at 5-6. He also considered the basis behind the charges in the 14 -day suspension
proposed by his first-line supervisor. ID at 7. The administrative judge further
considered the appellant’s arguments concerning the accuracy of his first -line
supervisor’s recommendations, including, for example, his claim that comments
in the job references concerning his communication abilities were inconsistent
and not credible because his first-line supervisor also stated in a prior affidavit
that he “had not previously failed to follow my orders/directions.” ID at 7; IAF,
Tab 15 at 5.
¶11 The administrative judge found that the statements in the job references
provided by the first-line supervisor were well supported by the specific incidents
in the 14-day suspension notice. ID at 8. He explained why he did not find a
credibility issue between the first-line supervisor’s statement and the references
she provided, noting that her assessment in her declaration was consistent with
the references she provided to the appellant’s prospective employers. Id. In
addition, he found nothing suspicious in the timing of the first-line supervisor’s
comments because she was responding to the reference requests after the
6
appellant already had resigned his position with the agency. Id. While the
appellant disagrees with the administrative judge’s findings , we have thoroughly
reviewed the record and, for the reasons discussed below, we discern no basis
upon which to disturb them.
¶12 For instance, the appellant asserts that his first-line supervisor made an
inconsistent statement when she was asked during the Bureau of Reclamation
reference to identify his leadership style or approach and she responded “No
direct experience to speak to.” PFR File, Tab 1 at 7; IAF, Tab 6 at 24. He asserts
that this comment contradicts her response of “Inspired loyalty in his interns” on
the U.S. Army Corps of Engineers reference when asked to identify his leadership
capabilities and, when asked during the BLM reference if he has served in a
leadership role, she answered “[y]es, project lead for grazing permit renewal and
Happy Valley Greenhouse.” IAF, Tab 6 at 24. However, the questions on the
three separate job references are different and we find no inconsistency in the
answers. Regarding the first comment, the appellant’s first -line supervisor
supervised him for less than 1 year, and he asserts that, because he was on sick
leave, she only supervised him for 2 1/2 months. PFR File, Tab 1 at 8. Based on
the relatively short period of time that she actually supervised him, she may not
have had any direct experience of actually observing a specific leadership style or
approach used by the appellant during that time frame. In contrast, the first-line
supervisor’s other two comments focused on whether she found the appellant
capable of holding a leadership role, and whether he held a leadership role under
her supervision. IAF, Tab 15, Subtab 4.
¶13 The appellant also contends that the administrative judge erred in his
assessment of the first-line supervisor’s comments to two different individuals
from the U.S. Army Corps of Engineers regarding the proficiency of his work.
PFR File, Tab 1 at 8. For example, the appellant argues that the administrative
judge incorrectly “quoted” the first-line supervisor’s comment when he said she
stated that the appellant would “occasionally” ma ke technical errors in his work.
7
ID at 6. The appellant argues that the first-line supervisor used the word “some”
not “occasionally,” and that the two words have different meanings. PFR File,
Tab 1 at 8. However, the administrative judge did not quote the statements made,
but instead summarized the first-line supervisor’s comments. ID at 6. Moreover,
while the appellant appears to argue that the first-line supervisor’s use of the
word “some” rather than “occasionally” made this a negative reference, we find
this argument unpersuasive.
¶14 Regarding the administrative judge’s consideration of the language in the
proposed suspension notice, the appellant also argues that the agency improperly
introduced evidence of the letter of reprimand and 14 -day suspension. He
contends that, because he did not raise the disciplinary actions in this appeal, it
was improper for the agency to submit evidence of the letter of reprimand and
suspension, and for the administrative judge to consider them. PFR File , Tab 1.
However, the record reflects that the appellant’s disciplinary actions were raised
first in documents included with his initial appeal. IAF, Tab 1. Nevertheless, the
job references provided by either supervisor make no mention of the disciplinary
actions. IAF, Tab 15, Subtab 4. Rather, the agency submitted evidence of the
letter of reprimand and 14-day suspension on appeal to support the explanations
of the appellant’s supervisors regarding their responses to questions asked in the
job references. Id., Subtab 3. We find no abuse of discretion by the
administrative judge in considering the record as a whole, including the letter of
reprimand and the notice and decision letter for his suspension. An
administrative judge has wide discretion to control the proceedings before him, to
accept and consider the evidence he finds relevant, and to ensure that the record
on significant issues is fully developed. 5 C.F.R. § 1201.41(b)(3); see Tisdell v.
Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003).
¶15 Accordingly, we agree with the administrative judge that the referen ces
provided by the appellant’s first-line supervisor suggest no unlawful hostility or
bias based on the appellant’s prior USERRA activity. Rather, we find that the
8
references were either neutral or positive and that, although the appellant would
have preferred only positive references, the neutral comments reflect his first -line
supervisor’s valid concerns regarding his performance in specific areas.
Accordingly, we agree with the administrative judge that the appellant did not
show that his protected activity under USERRA was a motivating or substantial
factor in these identified job references.
The appellant has failed to prove that his second-line supervisor was motivated
by his prior USERRA activity to provide negative employment references to his
prospective employers.
¶16 The appellant’s second-line supervisor supervised him from September 12,
2010, to February 13, 2015. IAF, Tab 15, Subtab 1. Due to a vacancy in the
Resources Supervisor position, she also served as his first -line supervisor from
March 2012, to February 2013. Id. The second-line supervisor provided job
references for the appellant to the U.S. Forest Service on December 17, 2013, and
July 14, 2015, to the U.S. Army Corps of Engineers on April 21, 2015, and to the
BLM Winnemucca Field Office on September 30, 2015. Id., Subtabs 1-2. On
May 15, 2014, his second-line supervisor issued him a letter of reprimand based
on two charges: “Acting Outside the Scope of Your Authority” and “Conduct
Unbecoming,” and on February 10, 2015, she sustained a proposed 14-day
suspension based on the same charges. Id., Subtabs 5, 7.
¶17 On review, the appellant argues that the administrative judge did not fully
analyze the inaccurate statements in the three job references provided by his
second-line supervisor in 2015. PFR File, Tab 1 at 19. For example, the
appellant contends that the administrative judge erred in not addressing the
statement that his second-line supervisor had not witnessed him in a leadership
role. Id. Similarly, he argues that, because his second-line supervisor directly
supervised and rated his performance in 2012, any of her comments on the job
evaluations in 2015 that were more negative than his 2012 ratings were
inconsistent and false. Id. at 19-21. For instance, he claims that, because she was
9
his immediate supervisor in 2012 and 2013, she falsely stated in the 2015 job
reference that she could not speak to the specific details concerning the level of
supervision that is required over him. Id. at 19. Similarly, he claims that her
2015 comments regarding his varying work ethic between the programs are
inconsistent with his 2012 performance evaluation when she rated him as superior
in the comparable critical elements. Id. at 21.
¶18 We find that the administrative judge thoroughly considered the job
references provided by the appellant’s second-line supervisor, as well as the letter
of reprimand and her decision on the appellant’s sustained suspension. ID
at 8-10. Additionally, he considered the appellant’s arguments concerning the
differences between the relatively positive employment reference in
December 2013, prior to his engaging in protected USERRA activities, compared
to her later references. ID at 11. The administrative judge credited the
second-line supervisor’s statement that her 2015 references were impacted by the
appellant’s change in attitude and his various conflicts with management, as
reflected in the letter of reprimand and suspension decision. ID at 12.
¶19 We have thoroughly reviewed the record and find no basis upo n which to
disturb the administrative judge’s findings concerning the second -line supervisor.
While the appellant continues to challenge the 2015 job references she provided,
his arguments involve the same 3-year gap between the references and the period
when she directly supervised him in 2012 and 2013. PFR File, Tab 1 at 20 -27.
Although it is undisputed that the appellant engaged in protected USERRA
activity in late 2014, the record demonstrates that his work performance and the
supervision required over him in 2012 and 2013 were not necessarily at the same
level as they were in 2014 and 2015. IAF, Tab 15, Subtabs 1 -4. Here, the
second-line supervisor specifically addressed this period of time in her
declaration and she explained that there was a change in the appellant’s
workplace attitude and demeanor and that he began to have conflicts with
management concerning program areas, responsibilities, and communication. Id.,10
Subtab 1. Even though the appellant disagrees with her conclusion regarding the
change in the quality of his performance during this period of time, we discern no
basis to disturb the administrative judge’s determination to credit the second -line
supervisor’s declaration on this point. See Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to
disturb the administrative judge’s conclusions when the init ial decision reflects
that she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions).
¶20 The appellant also appears to be arguing that the references provided by his
second-line supervisor are inconsistent because the 2015 references are more
positive and complimentary regarding his communication skills compared with
the charging language in the letter of reprimand and suspension he received. PFR
File, Tab 1 at 20. Thus, he reiterates his claim that she purposefully provided
inaccurate job references. However, while her comments may have been more
positive in her 2015 references for him than the charging language in the
disciplinary actions he received, such positive comments fail to support the
appellant’s argument that she provided negative employment references to his
prospective employers. To the extent the appellant is attempting to challenge the
merits of the letter of reprimand and his 14-day suspension, those actions are not
before the Board in this appeal and we have not addressed them. Accordingly, in
considering the record as a whole, we agree with the administrative judge’s
findings that the appellant failed to prove that his second -line supervisor was
motivated by his prior USERRA activity to provide neg ative employment
references to his prospective employers.
The appellant argues that the administrative judge was biased and failed to
interpret the arguments in the light most favorable to him as a pro se appellant.
¶21 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.
11382, 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, 555 (1994)).
¶22 Here, the appellant raises numerous arguments in which he alleges that the
administrative judge was biased and failed to interpret the arguments in the light
most favorable to him as a pro se appellant. PFR File, Tab 1 at 5 -6, 17. For
example, the appellant contends the administrative judge demonstrated bias by
accepting whatever rationalization his supervisors provided “ regardless of how
irrational and inconsistent” their statements were. Id. at 5-6. However, we have
reviewed the record and find no evidence of bias, and, as explained above, we
find the appellant’s arguments regarding the consistency of his supervisors’
statements unavailing. To the extent the appellant appears to argue that the
administrative judge demonstrated bias because he failed to address every
document or question raised concerning the job references, an administrative
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision. Marques v. Department of Health &
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table).
¶23 Finally, the appellant contends that the administrative judge focused on
misrepresentations by the agency and failed to consider that his former
supervisors were highly motivated to retaliate against him because he had
exercised his rights protected under USERRA. PFR File, Tab 1. However, we
find that the administrative judge issued an initial decision that thoroughly
addressed the issues and made reasoned findings and determinations. Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). While the
appellant disagrees with those findings, we find that his arguments provide no
basis to disturb the initial decision. See Broughton, 33 M.S.P.R. at 359.
12
Accordingly, we find that the administrative judge correctly denied the
appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS 3
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 choic es 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).
3
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 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
14
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(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
15
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 Cir cuit or any court
of appeals of competent jurisdiction. 4 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
4
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.