Paul Bishop v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 28Docket No. PH-1221-15-0535-W-1
Paul Bishop,
Appellant,
v.
Department of Agriculture,
Agency.
August 18, 2022
Paul Bishop, Hillsborough, New Jersey, pro se.
Bradly Siskind, Sarah S. Tuck and Zachary L. Wright,
Riverdale, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND 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. For the reasons discussed below, we VACATE the initial decision and
DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 In August and September 2014, the appellant applied for a GS -9/11
Entomologist (Identifier) position and for two GS-9/11 Plant Protection and
Quarantine Officer (Plant Health Safeguarding Specialist) positions, but the
2
agency did not refer his applications to the selecting official. Initial Appeal File
(IAF), Tab 31 at 20-48, Tab 58 at 4, 14, 22. On December 1, 2014, the appellant
filed a formal equal employment opportunity (EEO) complaint alleging that the
agency failed to refer him to the selecting official in retaliation for his prior EEO
activity, including an April 26, 2013 formal EEO complaint against the agency
and EEO activity against his former employer, the Department of Homeland
Security (DHS). 1 IAF, Tab 12 at 6-7, 18-20, Tab 18 at 31-32, 46-48. In
September 2015, the agency issued a final agency decision (FAD) finding no
evidence of discrimination or retaliation based on his prior EEO activity. IAF,
Tab 18 at 30-44.
¶3 On May 1, 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency failed to appoint him on April 26, 2015, 2
1
From 2005 to 2007, the appellant held a term appointment under the Federal Career
Intern Program at DHS. In 2007, DHS terminated him from his position for alleged
misconduct, and he has since unsuccessfully challenged his termination in multiple
appeals before the Board. E.g., Bishop v. Department of Homeland Security, MSPB
Docket No. NY-1221-17-0092-W-1, Initial Decision (Mar. 28, 2017); Bishop v.
Department of Homeland Security, MSPB Docket No. NY-1221-15-0186-W-1, Final
Order (Sept. 28, 2015); Bishop v. Department of Homeland Security, MSPB Docket
No. NY-1221-09-0209-W-1, Final Order (Feb. 24, 2010); Bishop v. Department of
Homeland Security, MSPB Docket No. NY-0752-08-0001-I-1, Initial Decision (Oct. 4,
2007). He also has unsuccessfully challenged his termination in other fora. E.g.,
Bishop v. Department of Homeland Security, 648 F. App’x 180 (3d Cir. 2016)
(affirming the district court’s dismissal of the appellant’s appeal for lack of jurisdiction
and its injunction enjoining him from filing further appeals related to his termination);
Bishop v. Office of Personnel Management, 514 F. App’x 104 (3d Cir. 2013)
(per curiam) (affirming the district court’s dismissal of the appellant’s claims that DHS
and the Office of Personnel Management violated the Freedom of Information Act in
failing to produce documents that would show his termination was illegal and the
Privacy Act in failing to “correct” purportedly inaccurate records that led to his
termination); Bishop v. Department of Homeland Security, EEOC Appeal
No. 0120090628, 2009 WL 742266 (Mar. 12, 2009) (finding no evidence of
discrimination in connection with, among other things, the appellant’s termination).
2
It is unclear why the appellant indicated that the nonselections at issue occurred on
April 26, 2015. IAF, Tab 9 at 9. The record reflects that the appellant initiated contact
with an EEO Specialist on October 16, 2014, and filed a formal EEO complaint on
3
in retaliation for his “disclosures” to the agency’s EEO office in April 2013 , and
on December 1, 2014. IAF, Tab 9 at 6-13. On August 13, 2015, OSC notified the
appellant that it was terminating its inquiry into his allegation that the agency
failed to select him for employment in reprisal for making disclosures of
discrimination and informed him of his right to seek corrective action from the
Board. IAF, Tab 1 at 14-15.
¶4 The appellant then filed the instant Board appeal, alleging, among other
things, that the agency failed to select him in retaliation for his prior EEO activity
at DHS. 3 Id. at 10-13. In addition, he alleged that his nonselection was the result
of DHS’s efforts to “black list” him from Federal employment in retaliation for
his prior EEO activity by placing an unlawful promotion in his personnel folder,
which serves as a “black list mechanism” recognized by civil service em ployees,
including the agency hiring official who reviewed his application. Id. at 11-12.
¶5 In orders on jurisdiction, the administrative judge informed the appellant of
the applicable law and his burden of proof to establish Board jurisdiction over his
IRA appeal and specifically explained to him that disclosures of discrimination
and retaliation claims are excluded from coverage under the Whistleblower
Protection Act (WPA). IAF, Tabs 5, 13. In response, the appellant again alleged
that the agency failed to refer his applications to the selecting official in
retaliation for his prior EEO activity and because DHS had “black listed” him in
December 1, 2014, regarding the agency’s failure to refer his applications in the
identified nonselections to the selecting official. IAF, Tab 12 at 6-7, 18-20, Tab 18
at 31, 46-47. Thus, it is clear that the appellant was notified of his nonselection for the
three positions at issue in this appeal on or before October 16, 2014.
3
Before the agency issued the FAD finding no evidence of retaliation in connection
with the appellant’s nonselections, he filed an appeal with a Federal district court
arguing that the agency’s failure to select him was discriminatory and retaliatory. IAF,
Tab 25 at 7-14. The administrative judge issued an order finding that the IRA appeal
could proceed in parallel with the Federal district court appeal because an IRA action is
not cognizable before the Federal district court and an EEO complaint is not cognizable
before the Board. IAF, Tab 26.
4
retaliation for his EEO activity at DHS. 4 IAF, Tab 9 at 2-3, Tab 12 at 2-3, Tab 15
at 2. In an order and summary of a telephonic prehearing conference, the
administrative judge interpreted and summarized the appellant’s claims and again
provided the appellant notice of his jurisdictional burden . IAF, Tab 54.
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant made one protected disclosure
when he disclosed in an EEO complaint to the agency’s EEO office that DHS
improperly gave him a step increase and a promotion on the same day, but that he
failed to show that the disclosure was a contributing factor in the agency’s
decision not to select him for the three positions at issue. IAF, Tab 63, Initial
Decision (ID) at 13-19. Thus, the administrative judge denied the appellant’s
request for corrective action. ID at 20.
¶7 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and the appellant has replied to the agency ’s
response. Petition for Review (PFR) File, Tabs 1, 3-4.
ANALYSIS
The Board’s determinations regarding its jurisdiction over IRA appeals are
matters of civil service law, rule, or regulation.
¶8 The Board’s jurisdiction is limited to those matters over whic h it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). As relevant here, the Board’s
jurisdiction over IRA appeals is derived from the WPA, Pub. L. No. 101-12,
103 Stat. 16, as amended by the Whistleblower Protection Enhancement Act of
2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. See Corthell v. Department
4
In support of his contention that DHS improperly promoted him, the appellant
submitted Standard Form 50s showing that he was awarded a within -grade increase
from GS-9, step 1, to GS-9, step 2, and a promotion from his GS-9 Agricultural
Specialist position to a GS-11 Agricultural Specialist position on September 3, 2006.
IAF, Tab 12 at 25, 27.
5
of Homeland Security, 123 M.S.P.R. 417, ¶ 7 (2016). Specifically, 5 U.S.C.
§ 1221(a) provides that “an employee, former employee, or applicant for
employment may, with respect to any personnel action taken, or proposed to be
taken, against such employee, former employee, or applicant for employment, as
a result of a prohibited personnel practice described in section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit
Systems Protection Board.” 5 U.S.C. § 1221(a).
¶9 Before adjudicating an IRA appeal on the merits, however, the Board must
determine whether the appellant has established jurisdiction by demonstrating
exhaustion of his administrative remedy with OSC and by nonfrivolously alleging
that he satisfies the criteria of section 1221(a)—i.e., that he made a protected
disclosure or engaged in protected activity that was a contributing factor in a
personnel action taken, or proposed to be taken, against him. See Schmittling v.
Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000); Salerno v.
Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board has
inherent authority to determine whether a matter is within its jurisdiction and to
make findings of fact and law necessary to such a determination. See Cruz v.
Department of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (holding that,
although the Board does not have jurisdiction over voluntary resignations, the
Board has jurisdiction to determine whether a resignation was involuntary and,
therefore, a “constructive removal” within the Board’s jurisdiction under 5 U.S.C.
§ 7512 “because it has jurisdiction to determine its jurisdiction” ); Lloyd v. Small
Business Administration, 96 M.S.P.R. 518, ¶ 16 (2004).
¶10 In addition to judicial and Board precedent, the term “civil service law”
embodies statutory provisions that are within title 5 of the United States Code,
enacted as part of the Civil Service Reform Act of 1978 (CSRA), Pub. L.
No. 95-452, 92 Stat. 1111, and have a bearing on civil servants. See Horner v.
Merit Systems Protection Board, 815 F.2d 668, 671 (Fed. Cir. 1987). The WPA,
which amends title 5 and which Congress passed with the intent of strengthening
6
the protections for Federal whistleblowers contained in the CSRA, is a civil
service law because it meets these criteria. See WPA § 2, 103 Stat. 16; King v.
Jerome, 42 F.3d 1371 (Fed. Cir. 1999) (finding implicitly, pursuant to 5 U.S.C.
§ 7703(d), that the interim relief provisions of the WPA and, by implication, all
other such provisions constituted civil service laws, rules, or regulations
appealable to the court by the Director of the Office of Personnel Management);
Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993); Askew v.
Department of the Army, 88 M.S.P.R. 674, ¶ 22 (2001); White v. Department of
the Air Force, 71 M.S.P.R. 607, 617 n.5 (1996). The WPEA, which amends the
WPA to further strengthen protections for Federal whistleblowers, is similarly a
civil service law because it too meets these criteria. See WPEA, Pub. L.
No. 112-199, 126 Stat. 1465; S. Rep. No. 112-155, at 1-4 (2012), as reprinted in
2012 U.S.C.C.A.N. 589, 589-92 (noting that the CSRA first established statutory
whistleblower protections). By extension, determinations by the Board regarding
whether an appellant has exhausted his OSC remedy and made nonfrivolous
allegations of whistleblower reprisal under the WPA and the WPEA are matters
of civil service law. See 5 U.S.C. § 1221(a); see also Cruz, 934 F.2d at 1244.
Therefore, we find that a Board determination as to whether it possesses
jurisdiction under the WPA and the WPEA or, in the alternative, whether it
should (or should not) reach the merits of such a case, is a matter of civil service
law, rule, or regulation.
The Board lacks jurisdiction over this IRA appeal.
¶11 Before adjudicating an IRA appeal on the merits, the Board must make a
threshold finding of jurisdiction. King v. Department of Veterans Affairs,
105 M.S.P.R. 21, ¶ 8 (2007). The Board may not assume that the appellant has
established jurisdiction over his appeal and then proceed to reject his
whistleblower reprisal claim on the merits; rather, the Board first must address
the matter of jurisdiction before proceeding to the merits of the appeal. Id.(citing Schmittling, 219 F.3d at 1336-37). Absent jurisdiction, the Board is
7
without authority to decide the issues presented by the appellant. Id. If there is
no jurisdiction over this IRA appeal, the administrative judge’s findings on the
merits of the appeal are a nullity. Id.¶12 Here, although the administrative judge denied the agency’s motion to
dismiss the appeal for lack of jurisdiction, he did not make any explicit findings
regarding jurisdiction. IAF, Tabs 11, 26; ID. Rather, he appeared to assume that
the Board had jurisdiction over this appeal, held a hearing, and denied corrective
action on the merits. IAF, Tab 46; ID. Because the Board must address the
matter of jurisdiction before proceeding to the merits of the appeal , we do so
now.
¶13 As noted above, to establish Board jurisdiction over an IRA appeal based on
whistleblower reprisal, the appellant must exhaust his administrative remedies
before OSC and make nonfrivolous allegations of the following: (1) he engaged
in whistleblowing activity by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take, fail to take, or threaten
to take a personnel action as defined by 5 U.S.C. § 2302(a). 5 Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno,
123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. § 2302(b)(8). A nonfrivolous allegation is an
assertion that, if proven, could establish the mat ter at issue. 5 C.F.R. § 1201.4(s).
¶14 The appellant here filed a complaint with OSC alleging that the agency
failed to appoint him in retaliation for his disclosures to the agency’s EEO o ffice
in EEO complaints in April 2013, and on December 1, 2014. IAF, Tab 9 at 9. It
5
Effective December 27, 2012, the WPEA expanded the grounds on which an appellant
may file an IRA appeal with the Board. WPEA §§ 101(b)(1)(A), 202, 126 Stat. at 1476;
see Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Because
all of the material events in this appeal occurred after December 27, 2012, the WPEA
applies to this appeal.
8
appears that he submitted partial copies of his April 2013 and December 1, 2014
EEO complaints to OSC. Id. at 12-13. In relevant part, these documents both
allege that the agency failed to select him for employment in retaliation for his
prior EEO activity and because DHS had “black listed” him from Federal
employment. 6 Id. In support of his blacklisting claim, the appellant alleged that,
in retaliation for his prior EEO activity, DHS improperly promoted him and that
the improper promotion served as a “black list mechanism” recognized by other
civil service employees, including the agency hiring official who reviewed his
application. Id. In its close-out letter, OSC indicated that it was closing its
inquiry into the appellant’s allegations that the agency failed to select him for
employment in reprisal for making disclosures of discrimination. IAF, Tab 1
at 14-15. Accordingly, we find that the appellant exhausted the se claims before
OSC.
¶15 Next, we must determine whether the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
Salerno, 123 M.S.P.R. 230, ¶ 5. Reprisal for exercising an EEO right is a
prohibited personnel practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C.
§ 2302(b)(8). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶¶ 7, 10 (2014);
Williams v. Department of Defense, 46 M.S.P.R. 549, 553 (1991). As relevant
here, protected activity under section 2302(b)(9)(A)(i) includes “the exercise of
6
The only evidence in the record regarding the appellant’s April 2013 EEO complaint
appears to be an unsigned, undated document titled “Supplemental Answers for
[agency] form 3090-1” alleging discrimination in connection with his nonselection for a
GS-9/11 Entomologist (Identifier) position, vacancy announcement number
24PQ-2013-0054, and a GS-9/11 Plant Protection and Quarantine Specialist position,
vacancy announcement number 24PQ-2013-0070. IAF, Tab 9 at 13. According to the
agency, it does not use a form 3090-1. IAF, Tab 32 at 6. Nonetheless, because the
agency acknowledged an April 2013 EEO complaint in its FAD, we assume for
purposes of our jurisdictional determination that the appellant filed an EEO complaint
in April 2013, including the “form 3090-1” in the record.
9
any appeal, complaint, or grievance right granted by any law, rule, or
regulation . . . with regard to remedying a violation of [section 2302(b)(8)].”
5 U.S.C. § 2302(b)(9)(A)(i) (emphasis added). Section 2302(b)(8) provides, in
relevant part, that it is unlawful for an agency to take or fail to take a personnel
action with respect to any employee or applicant for employment because of any
disclosure of information that he reasonably believes evidences any violation of
any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety .
5 U.S.C. § 2302(b)(8)(A). Thus, only complaints seeking to remedy
whistleblower reprisal are covered under section 2302(b)(9)(A)(i). See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013).
¶16 In the instant matter, the administrative judge found that the appellant
engaged in protected activity under section 2302(b)(9)(A)(i) when he filed an
EEO complaint in which he disclosed a reasonable belief that DHS violated the
regulatory “waiting period” for promotions by giving him a GS -9 step increase
and a promotion to GS-11 on the same day in 2006. ID at 13. However, the
appellant’s EEO complaint did not seek to remedy alleged whistleblower repris al
under section 2302(b)(8); rather, he repeatedly alleged that DHS unlawfully
promoted him and “black listed” him in retaliation for his prior EEO activity.
IAF, Tab 1 at 11, Tab 9 at 2. As discussed above, to constitute protected activity
under section 2302(b)(9)(A)(i), the substance of an appeal, complaint, or
grievance must concern remedying a violation of whistleblower reprisal under
section 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 7. A nonfrivolous allegation
regarding just one part of section 2302(b)(8)—such as, as here, a disclosure of
one of the categories of wrongdoing specified in section 2302(b)(8)(A) without
any allegation of whistleblower reprisal—is insufficient to constitute a
nonfrivolous allegation of protected activity under section 2302(b)(9)(A)(i). See
Mudd, 120 M.S.P.R. 365, ¶ 7. Therefore, we find that the appellant has failed to
nonfrivolously allege that he engaged in protected activity or made a protected
10
disclosure within the Board’s jurisdiction over IRA appeals. See 5 U.S.C.
§ 1221(a).
¶17 In light of the foregoing, we vacate the initial decision denying the
appellant’s request for corrective action and find that he failed to establish
jurisdiction over this IRA appeal.
ORDER
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 7
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
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.
11
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.
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
12
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
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
13
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. 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:
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 b y 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 c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
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.
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/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.