Opinion

Brandon Peoples v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRANDON LEE PEOPLES, DOCKET NUMBER

Appellant, AT-1221-20-0234-W-1

DEPARTMENT OF THE ARMY, DATE: July 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ianna Richardson , Esquire, and Shaun Southworth , Esquire, Atlanta,

Georgia, for the appellant.

Gary Levine , Esquire, Arlington Heights, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. We VACATE the administrative

judge’s finding that the appellant failed to exhaust his administrative remedies,

instead finding that the appellant exhausted with the Office of Special Counsel

(OSC) his claim that he made a protected disclosure and suffered a covered

personnel action, and we otherwise AFFIRM the initial decision.

BACKGROUND

The appellant is employed as a WG-9 Heavy Mobile Equipment Repairer.

Initial Appeal File (IAF), Tab 1 at 7. On January 13, 2020, he filed the instant

appeal and attached a copy of a December 2, 2019 letter from OSC notifying him

that it was terminating its inquiry into his allegations and providing him notice of

his Board appeal rights. Id. at 8-10. The administrative judge construed the

appellant’s filing as an IRA appeal and provided the corresponding jurisdictional

burden. IAF, Tabs 2-3. She ordered the appellant to file a statement,

accompanied by evidence, listing the following: (1) his protected disclosures or

activities; (2) the dates he made the disclosures or engaged in the activities;

(3) the individuals to whom he made any disclosures; (4) why his belief in the

truth of any disclosures was reasonable; (5) the actions the agency took or failed

to take, or threatened to take or fail to take, against his because of his disclosures

or activities; (6) why he believed a disclosure or activity, or a perception of such

a disclosure or activity, was a contributing factor to the actions; and (7) the date

of his complaint to OSC and the date that it notified him it was terminating its

investigation of his complaint, or, if he had not received such notice, evidence

that 120 days have passed since he filed his complaint with OSC. IAF, Tab 3

at 7-8.

Pursuant to the January 22, 2020 jurisdictional order, the appellant had

until February 3, 2020, to respond. 2 Id. at 1, 7. The appellant did not file a

response to the jurisdictional order. The agency submitted a timely response

requesting dismissal of the appeal, arguing that the appellant failed to make a

nonfrivolous allegation that he engaged in whistleblowing activity, or that he

made any protected disclosure or engaged in any protected activity that was a

contributing factor in the agency’s decision to take any personnel action. IAF,

Tab 5 at 5-8. Without holding the appellant’s requested hearing, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. IAF, Tab 6, Initial Decision (ID). The appellant has filed a petition

for review. Petition for Review (PFR) File, Tab 1. The agency has filed a

response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

To establish jurisdiction in an IRA appeal, an appellant must show by

preponderant evidence 3 that he exhausted his remedies before OSC, and make

The administrative judge ordered the appellant to respond within 10 calendar days of

the date of the jurisdictional order, which was January 22, 2020. IAF, Tab 3 at 1, 8.

Because the filing deadline fell on Saturday, February 1, 2020, the appellant had until

Monday, February 3, 2020, to file a response. See 5 C.F.R. § 1201.23 (providing that,

if a filing deadline falls on a weekend or Federal holiday, the filing period includes the

next business day).

Preponderant evidence is that degree of relevant evidence a reasonable person,

considering the record as a whole, would accept as sufficient to find a contested fact is

more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in a 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 or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of

Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by

Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous

allegation is one that (1) is more than conclusory, (2) is plausible on its face, and

(3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). The Board

generally treats OSC exhaustion as a threshold determination before considering

whether the appellant’s claims constitute nonfrivolous allegations of protected

disclosures or protected activities. See Carney v. Department of Veterans Affairs,

121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first element to Board

jurisdiction over an IRA appeal is exhaustion by the appellant of her

administrative remedies before OSC, and that the next requirement is that the

appellant nonfrivolously allege that she made a made a protected disclosure or

engaged in protected activity). In cases involving multiple alleged protected

disclosures and personnel actions, an appellant establishes Board jurisdiction over

his IRA appeal when he makes a nonfrivolous allegation that at least one alleged

personnel action was taken in reprisal for at least one alleged protected

disclosure. Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 6

(2010).

The Board, in Chambers v. Department of Homeland Security, 2022 MSPB

8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The

requirements are met when an appellant has provided OSC with a sufficient basis

to pursue an investigation. The Board’s jurisdiction is limited to those issues that

previously have been raised with OSC. However, appellants may give a more

detailed account of their whistleblowing activities before the Board than they did

to OSC. Appellants may demonstrate exhaustion through their initial OSC

complaint, evidence that they amended the original complaint, including but not

limited to OSC’s determination letter and other letters from OSC referencing any

amended allegations, and their written responses to OSC referencing the amended

allegations. Appellants also may establish exhaustion through other sufficiently

reliable evidence, such as an affidavit or a declaration attesting that they raised

with OSC the substance of the facts in the Board appeal. Id.

The burden of proving OSC exhaustion rests with the appellant, and the

Board may consider only those protected disclosures and activities and those

personnel actions that the appellant first raised with OSC. Id. Any doubt or

ambiguity as to whether the appellant made nonfrivolous jurisdictional

allegations should be resolved in favor of finding jurisdiction. Rzucidlo v.

Department of the Army, 101 M.S.P.R. 616, ¶ 14 (2006). Once an appellant

establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the

merits of his claim, which he must prove by preponderant evidence. Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant proves

that his protected disclosure or activity was a contributing factor in a personnel

action taken against him, the agency is given an opportunity to prove, by clear

and convincing evidence, that it would have taken the same personnel action in

the absence of the protected disclosure. Id.

We vacate the administrative judge’s finding that the appellant failed to prove

that he exhausted his administrative remedies before OSC.

On review, the appellant challenges the administrative judge’s finding that

he failed to prove that he exhausted his administrative remedies with OSC.

PFR File, Tab 1 at 8. For the following reasons, we conclude that the

administrative judge erred in determining that the appellant failed to exhaust his

administrative remedies. We therefore vacate that portion of the initial decision

and instead conclude that the appellant met his burden of proving that he

exhausted his administrative remedies with OSC.

As the administrative judge noted, the appellant did not provide a copy of

his OSC complaint with his initial appeal and has not provided a copy of the

complaint with his petition for review. IAF, Tab 1; PFR File, Tab 1; ID at 6-7.

He also did not provide an “affidavit, sworn statement, or declaration under

penalty of perjury” identifying the nature of his claims. IAF, Tab 3 at 7-8; ID

at 7.

However, the appellant did provide a copy of OSC’s close-out letter, which

does shed some additional light on the jurisdictional matter at issue. IAF, Tab 1

at 8-10. In its letter, OSC identified the appellant’s complaint as stating that, in

February 2018, he disclosed to his supervisor an allegedly fraudulent fuel card

expense form submitted in the appellant’s name. Id. at 8. In retaliation for his

purported disclosure, OSC described, the appellant alleged that agency officials

would not permit him to use a fuel card or allow him access to agency vehicles,

refused to assist him in inputting his work time into the time and attendance

system, wrote him up, issued him a lowered annual performance appraisal rating,

failed to select him for three positions, and subjected him to a hostile work

environment. Id. at 8-9. The letter also states that the appellant reported the

above issues to the agency’s Office of the Inspector General (OIG) in or around

September 2019. 4 Id. at 8.

In the initial decision, the administrative judge acknowledged these

assertions in OSC’s close-out letter but nevertheless concluded that the appellant

offered nothing more than a conclusory statement that the agency committed a

prohibited personnel practice, and that OSC’s letter failed to “identify the context

Although OSC’s close-out letter identifies that the appellant raised these same issues

with OIG, it does not identify any allegation by the appellant that any of the challenged

personnel actions were taken in retaliation for his disclosure to OIG, and the appellant

did not raise any such claim below or on review. IAF, Tab 1; PFR File, Tab 1.

Consequently, we do not interpret OSC’s statement as an allegation that the appellant

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), and we have not

considered it as such. See 5 U.S.C. § 2302(b)(9)(C) (describing as a protected activity

“cooperating with or disclosing information to the Inspector General . . . of an

agency . . . in accordance with applicable provisions of law”).

in which the appellant raised his claims as to the alleged protected disclosure or

personnel actions.” ID at 7. Consequently, she concluded that the appellant did

not provide evidence that he informed OSC of the “precise ground of his claims,”

and so he failed to provide OSC with a sufficient basis to pursue an investigation.

Id.

On review, the appellant argues that the use of the word “fraudulent” in

describing his disclosure of an “allegedly fraudulent fuel card expense”

sufficiently demonstrates that he alleged a violation of a law, rule, or regulation

related to a false statement contained in a government document. PFR File, Tab 1

at 8. We agree. A protected whistleblowing disclosure is a disclosure of

information that the appellant 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); Bradley v. Department of Homeland Security,

123 M.S.P.R. 547, ¶ 7 (2016). At the jurisdictional stage, the appellant only is

burdened with making a nonfrivolous allegation that he reasonably believed that

his disclosure evidenced one of these circumstances. See Bradley, 123 M.S.P.R.

547, ¶ 7.

Construing the appellant’s claim liberally, falsifying an official expense

request could constitute a violation of law under 18 U.S.C. § 1001(a)(3)

(describing as unlawful, “mak[ing] or us[ing] any false writing or document

knowing the same to contain any materially false, fictitious, or fraudulent

statement or entry”); see Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 13

(2000) (finding that the appellant made a nonfrivolous allegation that his

disclosure concerning fraudulent training forms evidenced a violation of

18 U.S.C. § 1001, despite the fact that he did not identify the specific law, rule,

or regulation that he believed was violated). The agency appears to acknowledge

that the appellant disclosed the falsified fuel expense, an investigation into the

matter was conducted, the issue was corrected, and changes were made to the

agency’s procedures. IAF, Tab 5 at 6, 16. Additionally, although the agency

agrees with the administrative judge’s finding that the appellant failed to prove

exhaustion on review, it did not dispute the appellant’s claim that he had

exhausted his administrative remedies regarding this purported disclosure below.

PFR File, Tab 4 at 5-6; IAF, Tab 5 at 6. Consequently, based on the record

before us, we conclude that a reasonable person in the appellant’s position could

reasonably believe that his disclosure evidenced a violation of law.

Regarding the appellant’s claim that he was subjected to a covered

personnel action, although the administrative judge did not directly address this

portion of the jurisdictional inquiry below, the Board has held that a performance

appraisal, even if it was at the “fully successful” performance level and was not

tangibly lower in comparison to previous years, can still constitute a covered

personnel action under section 2302(a)(2)(A). IAF, Tab 5 at 6-7, 23-26; Rumsey

v. Department of Justice, 120 M.S.P.R. 259, ¶ 16 (2013). A written reprimand is

also a covered personnel action, see Horton v. Department of Veterans Affairs,

106 M.S.P.R. 234, ¶ 18 (2007), as is a nonselection for a position, see Johnson v.

Department of Health and Human Services, 87 M.S.P.R. 204, ¶ 9 (2000).

Regarding the appellant’s allegation that he was subjected to a hostile work

environment in response to his purported disclosure, the Board has held that the

creation of a hostile work environment may constitute a personnel action under

5 U.S.C. § 2302(a)(2)(A)(xii) to the extent that it represents a significant change

in duties, responsibilities, or working conditions. Skarada v. Department of

Veterans Affairs, 2022 MSPB 17, ¶ 16 (explaining that agency actions that,

individually or collectively, have practical and significant effects on the overall

nature and quality of an employee’s working conditions, duties, or

responsibilities will be found to constitute a personnel action covered by

subsection 2302(a)(2)(A)(xii)). Accordingly, we conclude that the appellant also

nonfrivolously alleged that he suffered a covered personnel action.

We nonetheless agree with the administrative judge’s finding that the appellant

did not make a nonfrivolous allegation that his disclosure was a contributing

factor in the agency’s decision to take any of the identified personnel actions.

The next jurisdictional inquiry is whether the appellant made a

nonfrivolous allegation that his disclosure was a contributing factor in the

agency’s decision to take or fail to take any personnel action.

Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8), (b)(9)(A)

(i), (B), (C), or (D). To satisfy the contributing factor criterion, an appellant need

only raise a nonfrivolous allegation that the fact or content of the protected

disclosure or the protected activity was one factor that tended to affect the

personnel action in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to

establish this criterion is the knowledge/timing test, under which an appellant

may nonfrivolously allege that the disclosure or activity was a contributing factor

in a personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure or activity, and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the disclosure or activity was a contributing factor in the

personnel action. 5 U.S.C. § 1221(e)(1); see Salerno, 123 M.S.P.R. 230, ¶ 13.

In an alternate finding, the administrative judge concluded that, even if the

appellant proved that he exhausted his administrative remedies with OSC, he

nevertheless failed to make a nonfrivolous allegation that his protected disclosure

or activity was a contributing factor in the agency’s decision to take any

personnel action. ID at 7 n.7. We agree with this alternate finding.

As previously noted, the appellant failed to respond to the administrative judge’s

IRA jurisdiction order, so the only information we have to rely on is the sparse

narrative statement he provided with his initial appeal, along with OSC’s

characterization of the appellant’s claims as identified in its close-out letter.

IAF, Tab 1. The Board has held that a personnel action taken within 1 to 2 years

of a protected disclosure satisfies the “timing” portion of the knowledge/timing

test. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015).

Consequently, the challenged personnel actions, all of which the appellant alleges

occurred at some point between when he made his disclosure in February 2018,

and when he filed his OSC complaint in November 2019, appear to meet the

“timing” portion of the test. IAF, Tab 1 at 4, 8-9.

With regard to the “knowledge” portion of the test, the paucity of relevant

information included in these two documents makes it impossible to discern what,

exactly, the appellant disclosed with regard to the fraudulent fuel card expense,

who was responsible for each of the allegedly retaliatory actions, and which

responsible management officials were aware of the appellant’s purported

disclosure at the time they took the allegedly retaliatory personnel actions. IAF,

Tab 1 at 5, 8-9. The appellant also has not elaborated on any of these matters on

review. PFR File, Tab 1. Based on the existing record, we conclude that the

appellant has failed to satisfy the “knowledge” portion of the test. Accordingly,

we conclude that the appellant failed to meet his burden under the

knowledge/timing test, i.e., to nonfrivolously allege that his protected disclosure

was a contributing factor in any of the personnel actions taken against him. See

Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,

¶ 12 (2015) (finding that vague, conclusory, and unsupported allegations do not

satisfy the Board’s nonfrivolous pleading standard) ; see also Stiles v. Department

of Homeland Security, 116 M.S.P.R. 263, ¶ 23 (2011) (finding that the appellant

failed to establish contributing factor through the knowledge/timing test when he

failed to show that any of the officials involved in his nonselection were aware of

his protected disclosure).

The knowledge/timing test is not the only way for an appellant to satisfy

the contributing factor standard. Stiles, 116 M.S.P.R. 263, ¶ 24. If the appellant

fails to satisfy that test, the Board shall consider other evidence, such as that

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action, whether the whistleblowing was personally directed at the

proposing or deciding officials, and whether those individuals had a desire or

motive to retaliate against the appellant. Id. As explained above, based on the

existing record, we cannot discern which of the management officials responsible

for the challenged personnel actions had actual or constructive knowledge of the

appellant’s protected disclosure. Despite being afforded the opportunity to do so,

the appellant failed to provide additional detail related to his jurisdictional burden

below, and he makes no argument regarding the contributing factor criterion on

petition for review. IAF, Tab 1; PFR File, Tab 1. Accordingly, we agree with the

administrative judge’s alternate finding and conclude that the appellant failed to

nonfrivolously allege that he made a protected disclosure that was a contributing

factor in the agency’s decision to take a covered personnel action. Based on the

appellant’s failure to establish Board jurisdiction over his IRA appeal, it was

properly dismissed.

NOTICE OF APPEAL RIGHTS 5

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 requirements. Failure to file

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.

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

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

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

(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. 6 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).

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.

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