Andy Hoang v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDY HOANG, DOCKET NUMBER
Appellant, DC-844E-20-0727-I-1
v.
OFFICE OF PERSONNEL DATE: July 26, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andy Hoang, Raleigh, North Carolina, pro se.
Jo Bell, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its denial of the appellant’s application for
disability retirement under the Federal Employees’ Retirement System (FERS)
and awarded him benefits. Generally, we grant petitions such as this one only in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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 MODIFI ED to
find that the appellant met criterion (1) for determining eligibility for disability
retirement benefits under FERS, we AFFIRM the initial decision.
BACKGROUND
¶2 Effective August 27, 2018, the appellant was terminated from his position
as a CG-11 Risk Examiner with the Federal Deposit Insurance Corporation
(FDIC) for unacceptable performance. Initial Appeal File (IAF), Tab 10 at 26.
On February 7, 2019, he applied for FERS disability retirement benefits. Id.
at 37-50. In his statement of disability, the appellant asserted that he suffered
“from multiple medical disabilities” including, but not limited to, post-traumatic
stress disorder (PTSD), severe anxiety, major depressive disorder with suicidal
ideations, chronic fatigue syndrome, chronic hepatitis B, noted brain lesions,
concentration deficits, and meningioma. Id. at 43. The appellant asserted that
these medical conditions prevented him from “performing the highly demanding
job of a Risk Examiner.” Id. He further alleged that his medical conditions
“debilitate[] [him] and make[] [him] non-functional” and various methods of
treatment were ineffective. Id. OPM issued an initial decision denying the
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appellant’s application for FERS disability retirement benefits after finding that
he did not meet all the criteria for disability retirement, and the appellant
requested reconsideration. Id. at 12-21. He submitted additional documentation,
but OPM issued a reconsideration decision sustaining its initial decisio n. Id.
at 5-9.
¶3 The appellant filed an appeal with the Board challenging OPM ’s final
decision and requesting a hearing. IAF, Tab 1 at 2, 4. Following a telephonic
hearing, the administrative judge issued an initial decision reversing OPM’s
reconsideration decision and ordering it to grant the appellant ’s application for
disability retirement. IAF, Tab 20, Initial Decision (ID) at 1, 9-10. The
administrative judge determined that the appellant established that he became
disabled while employed at FDIC. ID at 4-6. The administrative judge also
found that the appellant’s medical conditions prevented him from being in
attendance at work and impacted his ability to perform the duties of his position.
ID at 6-8. The administrative judge then found that the appellant established that
his disabling medical condition was expected to continue for at least 1 year from
the date the application for disability retirement was filed. ID at 8-9. The
administrative judge further found that accommodation of the appellant is
unreasonable and that he did not decline an offer of reassignment to a vacant
position. ID at 9.
¶4 OPM has filed a petition for review to which the appellant has responded.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Christopherson v. Office of Personnel Management, 119 M.S.P.R. 635, ¶ 6
(2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement
annuity under FERS, an appellant must establish the following elements: (1) he
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completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, he became disabled because of a medical condition,
resulting in a deficiency in performance, conduct, or attendance, or, if there is no
such deficiency, the disabling medical condition is incompatible with either
useful and efficient service or retention in the position; (3) the disabling
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) he
did not decline a reasonable offer of reassignment to a vacant position.
Christopherson, 119 M.S.P.R. 635, ¶ 6; 5 C.F.R. § 844.103(a).
¶6 As to criterion (1) for establishing entitlement to a FERS disability
retirement annuity, the administrative judge acknowledged the appellant’s
testimony that he began Federal service with the FDIC in 2012 before resigning
in 2017; however, the administrative judge made no explicit finding as to whether
the appellant had 18 months of creditable civilian service. ID at 5. Therefore, we
do so here. The appellant’s individual retirement record supports his testimony
that he had 5 years of creditable civilian service between August 2012 and
September 2017. IAF, Tab 10 at 51. Thus, we find the appellant has proven he
had the requisite creditable service. Regarding criteria (4) and (5), the
administrative judge determined that accommodation of the appellant’s disabling
medical condition in his position was unreasonable and that the appellant did not
decline an offer of reassignment to a vacant position. ID at 9. Moreover, OPM
concedes on review that the appellant established criteria (1), (4), and (5) for
establishing entitlement to FERS disability retirement benefits . PFR File, Tab 1
at 6.
¶7 Rather, OPM challenges the administrative judge’s findings that the
appellant established criteria (2) and (3) by preponderant evidence. Id. at 7-9.
The administrative judge found that the appellant “established that he became
disabled due to PTSD, Depression, and Hepatitis B while employed at FDIC ,”
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that his medical conditions prevented him from performing the duties of his
position, and that his medical condition was expected to continue for at least
1 year after he filed his disability retirement application. ID at 4-9. As set forth
below, we agree with the administrative judge’s findings.
The appellant met criterion (2) because he proved by preponderant evidence that
his medical condition resulted in a deficiency in performance.
¶8 OPM appears to argue that the appellant failed to prove by preponderant
evidence that his medical conditions caused a service deficiency as to his
attendance. PFR File, Tab 1 at 7. However, that is not the only way to establish
the second criterion for establishing entitlement to disability retirement unde r
FERS. An appellant may meet the statutory requirement that he “be unable,
because of disease or injury, to render useful and efficient service in the
employee’s position” by showing that the medical condition caused a deficiency
in performance, attendance, or conduct, as evidenced by the effect of his medical
condition on his ability to perform specific work requirements, or that his medical
condition prevented him from being regular in attendance or caused him to act
inappropriately. Christopherson, 119 M.S.P.R. 635, ¶ 6 (2013). The
administrative judge determined that the appellant met this requirement because
“his PTSD and depression prevented him from being in attendance at work and
prevented him from performing the duties of his position. ” ID at 6. As set forth
below, we agree with the administrative judge that the appellant’s medical
conditions resulted in a deficiency in his performance as a Risk Examiner.
¶9 The appellant’s position required him to perform complex, detail-oriented
tasks, as noted by the administrative judge, including writing comments for
reports, conducting examinations as part of a team, and communicating with bank
management during the examinations. ID at 6-7. The appellant explained that, in
April 2018, he began experiencing symptoms associated with his PTSD, including
panic attacks, nightmares, paranoia, suicidal ideations, and anxiety which
impacted his ability to perform his duties. IAF, Tab 19, Hearing Recording (HR)
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(testimony of the appellant). He further asserted that he is still being treated for
his PTSD and depression at the Department of Veterans Affairs (VA). Id. The
administrative judge found the appellant’s testimony credible and supported by
the evidence in the record. ID at 6. It is well established that subjective
evidence, i.e., testimony or written statements regarding symptoms that is
submitted by the applicant, “may be entitled to great weight on the matter of
disability, especially where such evidence is uncontradicted by the record.”
Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 23 (2012)
(quoting Chavez v. Office of Personnel Management, 6 M.S.P.R. 404, 422
(1981)).
¶10 The objective medical evidence shows the appellant has been under the care
of several medical professionals for various medical conditions, including PTSD
and depression, and corroborates his claim that he could not perform his duties as
a Risk Examiner due to his medical conditions. IAF, Tab 10 at 59-73; HR
(testimony of the appellant). N.L., a Licensed Clinical Social Worker, treated the
appellant for PTSD and depression from September 2018 to February 2020. HR
(testimony of N.L.). She testified that he presented with “very severe symptoms”
on his initial depression screener including, inter alia, impaired focus and
concentration, fatigue, daily suicidal thoughts, nightmares from his time in the
Army, paranoia, and panic attacks. Id. She also found that he was not
employable the entire time he was under her care due to the severity of his
symptoms. Id. In addition, as noted by the administrative judge, the appellant
submitted a November 6, 2018 letter by N.L. stating that that “[e]ven with intense
psychotherapy and medication therapy [the appellant] will likely experience
mental health symptoms that will impede on his cognitive ability for many years.”
ID at 7; IAF, Tab 10 at 59. The administrative judge also considered a
February 25, 2019 letter from D.L., a Psychiatric Nurse Practitioner, who
continues to treat the appellant for PTSD and depression after he started treatment
in December 2018. ID at 7; IAF, Tab 10 at 73. In the letter, D.L. asserted that
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“[the appellant’s] anxiety and depression were having a significant, negative
impact on his daily function, sleep, drive, motivation and memory. He was
struggling to engage in routine tasks and activities with planning and
organization, which was creating basic problems for him regarding completion of
tasks.” IAF, Tab 10 at 73. D.L. further stated in his February 2019 letter that
“[the appellant’s] symptoms began to show some improvement in early January,
but he continued to struggle with maintaining regular and purposeful routines.
With ongoing treatment his symptoms have slowly begin to improve.” Id.¶11 OPM argues on review that the administrative judge improperly weighed
the objective medical evidence cited above. PFR File, Tab 1 at 7. Specifically,
OPM alleges that N.L.’s November 6, 2018 letter is contradictory to D.L.’s
February 25, 2019 letter and that the administrative judge erred in ass igning more
probative weight to N.L.’s letter. Id. at 7-8. We disagree. In reaching his
conclusion, the administrative judge properly weighed the m edical evidence. ID
at 4-8; see Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 11 (2014)
(recognizing that, in assessing the probative weight of medical opinions, the
Board considers whether the opinion was based on a medical examination and
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the treatment of the appellant),
overruled on other grounds by Haas v. Department of Homeland Security ,
2022 MSPB 36. Although D.L.’s letter indicates that the appellant’s symptoms
have slowly improved, it is not incongruous with the testimony or medical
opinion of N.L. Contrary to OPM’s assertion, D.L.’s letter is not inconsistent
with N.L.’s testimony and statements because, as set forth above, D.L. explains
that the appellant’s PTSD and depression negatively impacted his ability to
function. IAF, Tab 10 at 73. The administrative judge considered and cited the
medical evidence provided by both providers in finding that the appellant’s
disability impacted his ability to work. ID at 7. He also found the objective
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medical evidence was consistent with the subjective medical evidence and the
testimony before him; therefore, we are not persuaded by OPM’s challenge to the
administrative judge’s consideration of the relevant medical evidence. 2 See
Henderson, 117 M.S.P.R. 313, ¶ 19 (explaining that the Board considers all
pertinent evidence in determining an appellant’s entitlement to disability
retirement).
¶12 In addition, the appellant’s supervisor indicated on his writte n statement in
connection with the appellant’s application for disability retirement that “[the
appellant] was terminated from FDIC employment due to unacceptable job
performance.” IAF, Tab 10 at 49-50. The appellant also testified that he was
placed on a performance improvement plan shortly before his termination because
his leadership at FDIC found “[his] work was not focused, [he] don’t [sic] have
any concentration, [his] work was all over the place, [his] write up was all over
the place.” IAF, Tab 10 at 26-28; HR (testimony of the appellant). These
contentions are supported by the appellant’s letter of termination which states in
relevant part that he has “been provided frequent feedback and counseling on
[his] performance and work products, . . . issued multiple [d]evelopmental
[f]eedback [f]orms which detailed [his] unacceptable work and provided
suggestions for improvement. Despite this feedback and counseling, [his]
performance has not improved.” IAF, Tab 10 at 26. Viewing this evidence along
2
In determining that the appellant established entitlement to disability retirement
benefits, the administrative judge considered that the VA rated the appellant 100%
disabled and found that he is entitled to “individual unemployability” because he is
“unable to secure or follow a substantially gainful occupation as a result of
service-connected disabilities.” ID at 5; IAF, Tab 12 at 14. While the award of VA
disability benefits does not necessarily mandate that an applicant be granted a FERS
disability retirement annuity, the Board must consider an award of such benefits when
determining whether an appellant qualifies for a disability annuity under FERS .
Sachs v. Office of Personnel Management, 99 M.S.P.R. 521, ¶¶ 10–12 (2005). Here, the
medical evidence in the record corroborates the conclusion of the VA; therefore, we
find the administrative judge appropriately considered the VA’s disability rating and
benefits determination.
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with the appellant’s objective medical evidence, the appellant’s testimony that his
medical conditions prevented from performing his job duties is of considerable
evidentiary value. See Newkirk v. Office of Personnel Management , 101 M.S.P.R.
667, ¶ 16 (2006). Thus, we agree with the administrative judge that he proved by
preponderant evidence that his medical conditions prevented him from
performing the duties of the Risk Examiner position. ID at 7-8.
The administrative judge properly found the appellant ’s disabling medical
condition is expected to continue for at least 1 year from the date he filed his
application for disability retirement.
¶13 The administrative judge also found that his disabling medical con dition
lasted for more than 1 year after he filed his disability retirement application in
February 2019, based partly on N.L.’s testimony that the appellant was
unemployable in any capacity until February 2020. ID at 8; HR (testimony of
N.L.). OPM argues that the medical opinion of N.L. establishes the appellant’s
symptoms were reportedly improving; therefore, his medical condition did not
last for 1 year after he submitted his disability application. PFR File, Tab 1 at 9.
We disagree. As noted above, the medical evidence consistently indicates that
the appellant’s PTSD and depression impaired his cognitive ability and impacted
his ability to function, precluding him from performing his duties as assigned. ID
at 4, 7; IAF, Tab 10 at 59-67, 72-73. Moreover, both objective and subjective
medical evidence indicate that the appellant suffered from PTSD and depression
and was still receiving treatment for his medical conditions until at least February
2020. IAF, Tab 10 at 59-67, 72-73; HR (testimony of the appellant and N.L.).
We have considered OPM’s arguments on review concerning the administrative
judge’s weighing of the evidence, but, as explained above, we discern no reason
to reweigh the evidence or substitute our assessment of the record evidence for
that of the administrative judge. As such, we agree with the administrative judge
that the appellant met his burden by preponderant evidence that his condition was
expected to last 1 year after he filed his disability retirement application.
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¶14 After considering all evidence in the record, we agree with the
administrative judge’s finding that the appellant established entitlement to
disability retirement under FERS. Accordingly, we conclude that OPM has
provided no basis for disturbing the initial decision.
ORDER
¶15 We ORDER OPM to approve the appellant’s application for disability
retirement. OPM must complete this action no later than 20 days after the date of
this Order.
¶16 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶17 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
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and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and require ments. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(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
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.
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within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
14
(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. 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.
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.
15
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.