Stachie Campbell v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACHIE CAMPBELL, DOCKET NUMBER
Appellant, CH-0752-16-0336-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 8, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donald Gallick, Esquire, Akron, Ohio, for the appellant.
Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
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 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 a nd AFFIRM the initial
decision, except as expressly MODIFIED by this Final Order to clarify the
administrative judge’s analysis of the appellant’s disparate penalty claim.
BACKGROUND
¶2 The agency removed the appellant from a Postmaster position for improper
conduct. Initial Appeal File (IAF), Tab 1 at 13-18, Tab 9 at 31. The agency
alleged that the appellant engaged in improper conduct when she used multiple
agency credit cards to purchase fuel for her personal vehicle on at least eight
occasions. IAF, Tab 1 at 6-11. The appellant filed a Board appeal alleging that
the agency committed harmful procedural error and did not consider all of the
evidence in its decision. Id. at 2. During the proceedings below, the appellant
specifically alleged that the agency erred by providing incorrect information
regarding how to contest the notice of proposed removal and substituting an
official other than her immediate supervisor as the proposing official, and she
further alleged that the penalty imposed exceeded the bounds of reasonableness .
IAF, Tab 5 at 3, Tab 24 at 5-7.
¶3 Following a hearing, the administrative judge issued an initial decision
sustaining the agency’s removal action and finding that the appellant had not
3
proven her affirmative defenses. IAF, Tab 32, Initial Decision (ID) . In the initial
decision, the administrative judge incorporated her earlier ruling that the
appellant was estopped from disputing the charge due to an Ohio municipal
court’s findings and judgment of the appellant’s guilt regarding the same conduct
that formed the basis of the charged misconduct, and found the agency proved the
charge of improper conduct and a nexus between the sustained misconduct and
the efficiency of the service. ID at 3. The administrative judge found that the
appellant had not proven that the agency violated her due process rights or
committed harmful procedural error when it cited to the wrong response rights in
the notice of proposed removal or that the deciding official’s predisposition to
remove her prevented her from rendering an unbiased decision. ID at 4-7. The
administrative judge further found that the appellant did not prove that the agency
committed harmful procedural error when it appointed an official other than her
immediate supervisor as the proposing official. ID at 8-9. Finally, the
administrative judge found that the deciding official considered the appropriate
Douglas factors, 3 that the appellant did not show that the agency treated any
similarly-situated employees differently, and thus, that the penalty of removal
was reasonable. ID at 10-13.
¶4 The appellant has filed a petition for review in which she reiterates or raises
new arguments regarding due process, harmful procedural error, and the
reasonableness of the penalty. Petition for Review (PFR) File, Tab 1 at 6. The
agency has filed a response opposing the petition. PFR File, Tab 5. As set forth
below, we find each of the appellant’s arguments to be without merit. 4
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
4
Nearly 3 years after the appellant filed her petition for review, she filed a request to
withdraw the petition. PFR File, Tab 6, Tab 7 at 1 n.1. Pursuant to the May 11, 2018
Delegation of Authority for the Clerk of the Board to dismiss petitions for rev iew when
a party has indicated an intent to withdraw the petition, the Clerk of the Board issued
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is precluded from arguing that her lack of counsel during municipal
court proceedings and the resulting conviction warrant reversing the initial
decision.
¶5 On review, the appellant argues that the administrative judge improperly
considered her guilty plea in municipal court, which was entered without counsel
present, thus violating her constitutional rights to counsel and due process. PFR
File, Tab 1 at 6. To the extent the appellant contends that her guilty plea in
municipal court does not estop her from challenging the a gency’s charged
misconduct because her plea was obtained without counsel, she is precluded from
raising the issue on review. Following a June 2016 telephonic status conference
in which both parties participated, the administrative judge ruled that the
appellant’s guilty plea and resulting conviction for petty theft involved the same
issues as the agency’s charged misconduct, and under the doctrine of collateral
estoppel, the appellant was precluded from challenging the charge. IAF, Tab 11
at 2. The administrative judge’s order notified the parties that the ruling was
final absent receipt of notice from a party challenging the ruling within 7 days of
the order. Id. at 3.
¶6 The appellant filed a request for additional time to file an objectio n to the
order, which the administrative judge granted, but the appellant , who was
represented by counsel throughout the Board’s proceedings below, did not file an
objection. IAF, Tab 14 at 3, Tab 15. In her prehearing submission, the appellant
noted the administrative judge’s ruling but did not object to it. IAF, Tab 24 at 4.
During the hearing, the appellant testified regarding her lack of counsel at the
municipal court hearing but did not object to the administrative judge’s collateral
estoppel ruling on this ground. IAF, Tab 34, Hearing Transcript (HT) at 93-94
(testimony of the appellant). The appellant’s failure to timely object to the
orders directing the appellant to perfect her request for withdrawal. PFR File, Tabs 7 -8.
The appellant did not respond. Accordingly, we have proceeded to a decision on the
merits of her petition.
5
administrative judge’s ruling regarding her guilty plea and conviction precludes
her from raising the issue as a basis for review. See Gallegos v. Department of
the Air Force, 121 M.S.P.R. 349, ¶ 16 (2014) (holding that the appellant’s failure
to timely object to the administrative judge’s rulings regarding her affirmative
defenses precluded her from raising the issue on review) . The appellant has not
otherwise contested the administrative judge’s ruling t hat her guilty plea and
resulting conviction for petty theft estopped her from challenging the agency’s
charge, and we discern no reason to disturb it. 5
The appellant has not established that the agency committed harmful procedural
error.
¶7 On review, the appellant maintains that harmful procedural error occurred
when the agency designated an official other than her immediate supervisor to
propose her removal. PFR File, Tab 1 at 6. The administrative judge considered
5
In ruling that the appellant was estopped from challenging the agency’s charge, the
administrative judge mistakenly relied on the Board’s standard for applying collateral
estoppel to an issue previously litigated in a Federal court or proceeding. IAF, Tab 11
at 1-2. When, as here, an appellant is found guilty of a crime under state law, the Board
will apply that state’s collateral estoppel standards to determine the preclusive effect of
the conviction. Graybill v. U.S. Postal Service, 782 F.2d 1567, 1571-73 (Fed. Cir.
1986) (applying Maryland law on collateral estoppel in determining the preclusive
effect of the appellant’s conviction in Maryland state court); Mosby v. Department of
Housing and Urban Development, 114 M.S.P.R. 674, ¶¶ 5-6 (2010) (applying District
of Columbia collateral estoppel standards). The issue of whether a guilty plea in a
criminal prosecution of this nature has preclusive effect in a subsequent civil action is
not settled law in Ohio. See, e.g., State v. C.A., 2015-Ohio-3437, 2015 WL 5011700,
at ¶¶ 16-21 (Ohio Ct. App. 2015) (declining to give preclusive effect to a guilty plea in
a subsequent proceeding to seal records); Wilcox v. Gregory, 112 Ohio App. 516, 516,
520-21, 176 N.E.2d 523, 524, 527 (Ohio Ct. App. 1960) (stati ng that a guilty plea and
resulting conviction of a violation of a penal traffic ordinance is not admissible in a
civil action against the accused growing out of the same offense); but see Wloszek v.
Weston, Hurd, Fallon, Paisley & Howley, LLP, 2004-Ohio-146, 2004 WL 64947,
at ¶¶ 37-41 (Ohio Ct. App. 2004) (finding that the transcript of the appellant’s
arraignment and plea proceeding, and her guilty plea, were sufficient to estop the
appellant from denying liability in a malpractice action against her form er attorney).
We need not address this issue, however, as the appellant failed to preserve an objection
to the administrative judge’s ruling on this issue, and she has not challenged it on
review. See Gallegos, 121 M.S.P.R. 349, ¶ 16.
6
the appellant’s claim below and found that, although the substitution constituted a
procedural error, it did not constitute harmful error. ID at 8-9. An agency’s
adverse action may not be sustained if an employee shows harmful error in the
application of the agency’s procedures in arriving at the decision. 5 U.S.C.
§ 7701(c)(2)(A). Harmful error cannot be presumed; an agency error is harmful
only when the record shows that the error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 7 (2015).
The appellant bears the burden of proving by preponderant evidence that the
agency committed harmful error in reaching its decision. 5 C.F.R.
§ 1201.56(b)(2)(i)(C), (c)(1).
¶8 We agree with the administrative judge that the appellant did not establish
her harmful error claim. Although the appellant showed that the agency did not
follow its internal procedures for substituting a proposing official for her
immediate supervisor, as set forth in the Employee and Labor Relations Manual
(ELM) § 651.73, she did not show that the error was likely to have caused a
different result. 6 IAF, Tab 24 at 20; ID at 8. The decision to substitute an
official other than the appellant’s immediate supervisor occurred before the
appellant’s immediate supervisor was asked to be the proposing official or to
consider appropriate discipline for the appellant . IAF, Tab 24 at 9; HT at 9-10
(testimony of the immediate supervisor); ID at 8-9. A change in the proposing
official does not constitute harmful error unless the change occurs after the
original proposing official has reached a decision as to the approp riate penalty to
6
The administrative judge concluded that the agency erred when it appointed an official
other than the appellant’s immediate supervisor as the proposing official; however, the
agency’s ELM does not prevent substituting an official other than an employee’s
immediate supervisor. IAF, Tab 24 at 20, ID at 8. Rather, the ELM requires the
substitution to be made by one of three labor relations or human resources officials.
Contrary to agency procedure, the deciding official made the substitution in this case at
the recommendation of a human resources official who was not one of the three
officials designated in the ELM. IAF, Tab 24 at 9, 20.
7
propose. Bross v. Department of Commerce, 389 F.3d 1212, 1218 (Fed. Cir.
2004); Goeke, 122 M.S.P.R. 69, ¶ 16. There is no evidence that the appellant’s
immediate supervisor had decided upon an appropriate penalty when the change
was made, and she testified that she would have propose d the appellant’s removal
had she been the proposing official. IAF, Tab 24 at 9; HT at 10-11 (testimony of
the immediate supervisor); ID at 8-9. Accordingly, we find that the
administrative judge properly concluded that the appellant did not establish her
affirmative defense of harmful procedural error.
¶9 The appellant’s petition also alleges that the agency either committed a due
process violation or harmful procedural error by appointing a biased proposing
official. PFR File, Tab 1 at 6. She further alleges that the administrative judge
failed to consider as evidence of the proposing official’s bias that the agency’s
Office of Inspector General (OIG) caused negative publicity. Id. The appellant
did not raise below an allegation of bias concerning the proposing official and has
not shown that either argument is based on new and material evidence;
accordingly, we will not consider them. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (holding that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously avail able
despite the party’s due diligence).
The initial decision is modified to analyze the appellant’s disparate penalty claim
consistent with Singh v. U.S. Postal Service; however, the appellant has not
shown that the administrative judge erred in sustaining the penalty of removal.
¶10 On review, the appellant argues that the administrative judge erred in
sustaining the deciding official’s penalty analysis. PFR File, Tab 1 at 6. When,
as here, the agency’s charge has been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 25
8
(2014). The Board will modify a penalty only when it finds that the agency failed
to weigh the relevant factors or that the penalty the agency imposed c learly
exceeded the bounds of reasonableness. Id.¶11 The appellant appears to maintain her argument from below that it was
unfair for the deciding official to consider an online news article as evidence of
the notoriety of the appellant’s misconduct because the agency’s OIG sent
information regarding the appellant’s conviction to the publication that posted the
article. IAF, Tab 24 at 6; PFR File, Tab 1 at 6. We find that the appellant has
shown neither a due process violation nor harmful procedural error in the
deciding official’s consideration of the negative publicity generated from the
online article. The record reflects that the agency’s OIG sent a press release to
several publications regarding the appellant’s conviction , and shortly thereafter,
one of the publications posted an online article regarding the appellant’s
conviction. IAF, Tab 6 at 52, Tab 24 at 36. The deciding official considered the
online article and the fact that the appellant’s conviction was publicized online—
which generated comments from the public—as evidence of the notoriety of the
appellant’s misconduct, even though she did not know at the time of her decision
that it was the OIG that provided the press release to the publication posting the
online article. IAF, Tab 1 at 16; HT at 61-62 (testimony of the deciding official).
¶12 The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against her, with an explanation of the
evidence, and an opportunity for the employee to present her account of events.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).
Introducing new and material information by means of ex parte communications
to the deciding official can undermine an employee’s due process guarantee of
notice and the opportunity to respond. Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). Here, when the deciding
official made her decision, she had not received any information in addition to
that provided to the appellant, and the appellant received notice of the online
9
article and an opportunity to respond to it; accordingly, the OIG’s having
provided the press release to the publication posting the online article did not
violate the appellant’s due process rights. IAF, Tab 1 at 9; HT at 61-62
(testimony of the deciding official).
¶13 The appellant has not alleged that the OIG’s having provided the press
release to the publication posting the online article constituted a failure on the
agency’s part to follow its procedures; accordingly, she has not shown a
procedural error under 5 U.S.C. § 7701(c)(2)(A). Moreover, the deciding official
testified that even if the online article had not existed, she nevertheless would
have removed the appellant; accordingly, the appellant cannot demonstrate that ,
even assuming any error on the agency’s part, it would have resulted in a
different outcome. HT at 62 (testimony of the deciding official); see Goeke,
122 M.S.P.R. 69, ¶ 7. Finally, the online article contains information about the
appellant’s conviction not contained in the OIG’s press release, but presumably
available as a matter of public record. Compare IAF, Tab 6 at 52, with IAF,
Tab 24 at 36. Accordingly, we cannot conclude that the agency alone caused the
publication to generate the article and the resulting negative publicity that the
deciding official considered in her decision, or that considering the article was
otherwise improper.
¶14 The appellant also alleges that the administrative judge failed to conduct a
full disparate penalty analysis; specifically, she maintains that a particular
employee should have been considered as a comparator. PFR File, Tab 1 at 6.
After the issuance of the initial decision, we overruled a portion of our precedent
and clarified the law governing disparate penalty claims in Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶¶ 10-18. Accordingly, we modify the initial decision to
analyze the appellant’s disparate penalty claim consistent with Singh.
¶15 Among the factors an agency should consider in setting the penalty for
misconduct is the “consistency of the penalty with those imposed upon other
employees for the same or similar offenses.” Id., ¶ 10 (quoting Douglas v.
10
Veterans Administration, 5 M.S.P.R. 280, 305 (1981)). In assessing the agency’s
penalty determination, the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees who engaged in the same or similar offenses
differently. Id., ¶¶ 14-17; see Facer v. Department of the Air Force, 836 F.2d
535, 539 (Fed. Cir. 1988) (providing that a person does not have a legally
protected interest in the evenness of a misconduct penalty assessed on him
compared to that assessed on others unless employees are knowingly treated
differently “in a way not justified by the facts, and intentionally for reasons other
than the efficiency of the service.”). The universe of potential comparators will
vary from case to case, but it should be limited to those employees whose
misconduct or other circumstances closely resemble those of the appellant.
Singh, 2022 MSPB 15, ¶ 13.
¶16 Although the administrative judge did not have the benefit of Singh when
she issued the initial decision, she properly found that the particular employee in
question was not similarly situated to the appellant. The comparator was a
noncareer, nonsupervisory employee, whereas the appellant was a supervisor and
could be held to a higher standard of conduct than a nonsupervisor. IAF, Tab 25
at 4-5; HT at 57-59 (testimony of the deciding official); see Edwards v. U.S.
Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010) (noting that agencies are entitled
to hold supervisors to a higher standard than nonsupervisors because they occupy
positions of trust and responsibility). Although the nature of the misconduct was
similar, as both the comparator and the appellant were charged with improper
misconduct for use of an agency credit card to purchase personal items, the other
employee’s misconduct involved using an agency card on only one date, whereas
the appellant’s misconduct included using an agency card on at least eight dates,
resulting in a theft conviction. Compare IAF, Tab 1 at 6-9, with IAF, Tab 25
at 4-5. The deciding official also considered the consistency of the appellant’s
penalty with other penalties but was unaware of the other employee’s discipline
when she issued her decision. HT at 52-58 (testimony of the deciding official).
11
Given these factors, we conclude that there is not enough similarity between the
appellant and the other employee to establish that they are similarly situated.
¶17 We find the appellant’s other arguments regarding the reasonableness of the
penalty unpersuasive. PFR File, Tab 1 at 6. The record reflects that the deciding
official considered the appellant’s years of service, lack of prior disciplinary
history, and work record but did not find that they outweighed the seriousness of
the offense. IAF, Tab 1 at 15-16; HT at 62-63 (testimony of the deciding
official). The deciding official considered all relevant factors in her decision;
accordingly, we find that the agency exercised management discretion within
tolerable limits of reasonableness in removing the appellant, and we affirm the
administrative judge’s initial decision.
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 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. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.
12
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.
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
13
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
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:
14
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. 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).
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 compet ent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.