Mazen Khenaisser v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MAZEN KHENAISSER, DOCKET NUMBER

Appellant, SF-0752-16-0665-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: January 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mazen Khenaisser, Elk Grove, California, pro se.

Kevin D. Mack, Esquire, Sacramento, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction and as untimely filed . Generally, we

grant petitions such as this one only in the following circumstances: the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 During the periods relevant to this appeal, the agency employed the

appellant as a GS-11 Civil Engineer. Initial Appeal File (IAF), Tab 8 at 173. In

early 2014, his supervisor issued him three “Direct Orders” setting forth required

tasks and reminding him that he was obligated to comply with the orders. IAF,

Tab 1 at 9-11. The appellant signed the first two orders but refused to sign the

third. Id. at 5, 9-11. On May 21, 2014, his supervisor proposed to suspend him

for 5 days on the basis of disruptive conduct and discourteous behavior and

requested medical documentation to assess possible reasonable accommodations .

Id. at 12-15, 23-25. The appellant’s supervisor subsequently rescinded the

proposed suspension and, on June 19, 2014, proposed the appellant’s removal

based on charges of “Making Alarming and Disturbing Comments and/or

Gestures to Supervisor” and failure to follow instructions. IAF, Tab 8 at 178-87,

429. The appellant resigned effective that same day. Id. at 173-76.

3

¶3 After his resignation, the appellant filed a grievance challenging a number

of agency actions leading up to his resignation and alleging discrimination and

retaliation. Id. at 511-31. On August 8, 2014, the designated agency official

issued a response, finding that, because the appellant had resigned by the time he

filed the grievance, he was no longer an employee exclusively represented by the

local union or covered by the collective bargaining agreement. Id. at 635-37.

Nonetheless, the agency official considered the appellant’s alleged violations of

the collective bargaining agreement and alleged reprisal for disclosures, found

that the agency had not violated the collective bargaining agreement or retaliated

against the appellant, and denied his request to be reinstated with a promotion or

reassignment. Id. at 637-54. The agency official informed the appellant that,

because allegations of discrimination are excluded from the negotiated grievance

procedure, he would not consider them in his response to the appe llant’s

grievance. Id. at 652.

¶4 The appellant then submitted a step-three grievance to the Office of the

Regional Director. Id. at 675-707. On October 8, 2014, the Deputy Regional

Director issued the region’s final decision on the appellant’s grievance,

concurring with the findings on the step-two grievance, denying the appellant’s

request for reinstatement, and informing him that, if the grievance was not

resolved, the union could submit the issue to arbitration within 30 days . Id.

at 716-25. The Deputy Regional Director also informed the appellant again that

allegations of discrimination are excluded from the negotiated grievance

procedure and would not be addressed by his response. Id. at 721. The union did

not invoke arbitration on the appellant’s behalf. 2 Id. at 16.

2

After the union declined to invoke arbitration on the appellant’s behalf, he filed two

unfair labor practice complaints with the Federal Labor Relations Authority (FLRA)

regarding the handling of his grievance. IAF, Tab 8 at 784-86. The FLRA dismissed

both complaints. Id. at 775-77. He then filed an equal employment opportunity

complaint alleging that the local union president discriminated and retaliated against

him when he refused to assign him union representation. IAF, Tab 1 at 59-68. In a

4

¶5 On July 31, 2016, the appellant filed an appeal with the Board alleging that

the union president illegally denied him arbitration and that the agency had

discriminated and retaliated against him by, among other things, subjecting him

to a hostile work environment, giving him “Direct Orders,” proposing his 5-day

suspension, removing him from a specific project, requesting medical

documentation, not selecting him for a position, “stripping [him] of union

entitlements, such as arbitration,” and “commit[ing] the worst violation of

5 U.S.C. § 7121 imaginable when they refused to negotiate on discrimination.”

IAF, Tab 1 at 4-8. In an order on jurisdiction, the administrative judge explained

that the Board lacked jurisdiction over many of the appellant’s allegations but

that, insofar as he was raising claims of involuntary resignation and

whistleblower reprisal, the Board may have jurisdiction over his appeal. IAF,

Tab 3 at 2-3. The administrative judge thus notified the appellant of the

applicable law and his burden of proving Board jurisdiction over an involuntary

resignation appeal and an individual right of action (IRA) appeal based on

whistleblower reprisal, and ordered him to file evidence and argument amounting

to a nonfrivolous allegation of jurisdiction. Id. at 5-12.

¶6 In a separate order on timeliness, the administrative judge explained that,

even if the Board had jurisdiction over the appellant’s alleged involuntary

resignation claim, it appeared to be untimely filed. The administrative judge

ordered the appellant to submit evidence and argument establishing that his

appeal was timely filed or that good cause existed for the untimely filing. IAF,

Tab 4 at 1-4.

final agency decision, the agency dismissed the complaint for failure to state a claim.

Id. at 109-13. The appellant appealed the final agency decision to district court, which

adopted the magistrate’s findings and recommendation dismissing the appellant’s

amended complaint, which had raised additional allegations of discrimination and

reprisal by agency officials, for lack of jurisdiction and for failure to state a claim .

IAF, Tab 8 at 150-55, 164-66. The U.S. Court of Appeals for the Ninth Circuit later

affirmed the district court’s decision. Khenaisser v. Zinke, 693 F. App’x 608 (9th Cir.

2017).

5

¶7 In response to these orders, the appellant reiterated his allegations regarding

discrimination and retaliation, alleged numerous agency violations of the merit

systems principles, and argued that his appeal was timely filed under 5 U.S.C.

§ 7121 because he filed the grievance within 30 days of his resignation on

July 18, 2014. IAF, Tab 5 at 4-13.

¶8 Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal. IAF, Tab 10, Initial Decision (ID). She

found that the appellant’s alleged involuntary resignation was outside the Board ’s

jurisdiction and untimely filed by more than 2 years and that his timely filed

grievance did not render the current appeal timely filed. ID at 10-22. She further

found that the appellant failed to show that he had exhausted his administrative

remedy with the Office of Special Counsel (OSC) and, therefore, did not establish

jurisdiction over his IRA appeal. ID at 23. The administrative judge additionally

found that the Board lacked jurisdiction over the various other agency actions

challenged by the appellant, his discrimination and retaliation claims, and his

challenges to the grievance process and decisions. ID at 23-27.

¶9 The appellant has filed a petition for review of the initial decision . Petition

for Review (PFR) File, Tab 1 at 4-22. The agency has not submitted a response.

ANALYSIS

The administrative judge correctly determined that the appellant failed to

establish Board jurisdiction over any of the alleged agency or union actions.

¶10 As noted above, the appellant alleged that his resignation was involuntary

and challenged numerous agency actions, including the direct orders from his

supervisor, the proposed 5-day suspension, the agency’s request for medical

documentation, his removal from a specific project, and his nonselection for a

project manager position. IAF, Tab 1 at 4-8. He also argued that the agency and

the union violated various merit systems principles and discriminated and

retaliated against him. Id.; IAF, Tab 5 at 4-13. In the initial decision, the

administrative judge considered each of these allegations and concluded that the

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Board lacked jurisdiction to review such claims and that the appellant’s

involuntary resignation claim was untimely filed. ID at 22-27. The appellant

challenges these findings on review. PFR File, Tab 1 at 4-22.

¶11 The Board does not have jurisdiction to address all matters that are alleged

to be incorrect or unfair. Miller v. Department of Homeland Security,

111 M.S.P.R. 325, ¶ 14 (2009), aff’d, 361 F. App’x 134 (Fed. Cir. 2010). Rather,

the Board adjudicates only those actions for which a right of appeal has been

granted by law, rule, or regulation. Maddox v. Merit Systems Protection Board,

759 F.2d 9, 10 (Fed. Cir. 1985).

¶12 Generally, the Board lacks the authority to review an employee’s decision

to resign, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,

115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). However, an

appellant may overcome the presumption of voluntariness by showing that his

resignation was the product of misinformation or deception by the agency, or of

coercive acts by the agency, such as intolerable working conditions or the

unjustified threat of an adverse action. SanSoucie v. Department of Agriculture,

116 M.S.P.R. 149, ¶ 14 (2011). The Board addresses allegations of

discrimination and reprisal in connection with an alleged involuntary retirement

only insofar as those allegations relate to the issue of voluntariness and not

whether they would establish discrimination or reprisal as an affirmative defense.

Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). If the

employee makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that,

if proven, could establish the Board’s jurisdiction, he is entitled to a hearing at

which he must prove jurisdiction by a preponderance of the evidence. Id., ¶ 18.

¶13 In cases such as this one, when the employee appears to allege that the

agency took actions that made working conditions so intolerable that he was

driven to an involuntary resignation, the Board will find an action involuntary

only if the employee demonstrates that the agency engaged in a course of action

that made working conditions so difficult or unpleasant that a reasonable person

7

in his position would have felt compelled to resign. Id., ¶ 20. The doctrine of

coerced involuntariness is “a narrow one” and does not apply if the emplo yee

resigns or retires because he “does not want to accept [measures] that the agency

is authorized to adopt, even if those measures make continuation in the job so

unpleasant . . . that he feels that he has no realistic option but to leave.” Staats v.

U.S. Postal Service, 99 F.3d 1120, 1124 (1996). “[T]he fact than an employee is

faced with an unpleasant situation or that his choice is limited to two unattractive

options does not make [his] decision any less voluntary.” Id. The touchstone of

the “voluntariness” analysis is whether, considering the totality of the

circumstances, factors operated on the employee’s decision-making process that

deprived him of freedom of choice. Vitale, 107 M.S.P.R. 501, ¶ 19.

¶14 Here, the administrative judge found that the appellant failed to

nonfrivolously allege that the direct orders, the agency’s decision to remove him

from a specific project, the proposed 5-day suspension, the request for medical

documentation, and the proposed removal constituted improper agency acts that

created intolerable working conditions and forced him to resign. ID at 18-21.

She also found that the appellant failed to nonfrivolously allege that the agency

knew that it could not substantiate the proposed re moval so as to render his

resignation involuntary on the basis of the unjustified threat of an adverse action.

ID at 21.

¶15 On review, the appellant argues that his resignation was involuntary

because the agency was going to remove him and denied his request for a

reassignment. PFR File, Tab 1 at 5. He also asserts that the reprisal , direct

orders, “bogus suspensions,” and request for medical documentation were

“enough to make the employee lose the desire to return” and that the reprisal was

only going to get worse. Id. These vague and conclusory allegations, however,

provide no basis to disturb the administrative judge’s well-reasoned findings on

this issue, and we discern no basis to disturb them. See Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the

8

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶16 The administrative judge also found that the agency provided the appellant

notice of his Board appeal rights, including that he must file within 30 days of his

alleged involuntary resignation, ID at 11-14, and that his involuntary resignation

appeal was nonetheless untimely filed by more than 2 years without good cause

shown, ID at 15-17. On review, the appellant argues that his appeal was timely

filed because he filed his grievance within 30 days of the “proposed action” and

because there is “no time limitation set forth by 5 U.S.C. § 7121.” PFR File,

Tab 1 at 5. As correctly explained by the administrative judge, however, the

appellant’s timely filed grievance does not affect the timeliness of the instant

appeal, and, as discussed below, there is no “final” arbitration decision deciding a

grievance of an otherwise appealable action that may be reviewed by the Board

pursuant to 5 U.S.C. § 7121(d) at issue in this appeal. ID at 15. Accordingly, the

appellant’s arguments on review provide no basis to disturb the administrative

judge’s timeliness determination, and we agree that the appellant’s alleged

involuntary resignation appeal is untimely filed without good cause shown.

¶17 Additionally, we agree with the administrative judge’s determination s that

the Board lacks jurisdiction over the various other agency actions alleged by the

appellant, such as his 5-day suspension and nonselection and actions taken by the

union officials, and that, absent an otherwise appealable action, the Board lacks

jurisdiction to review his allegations of merit systems principle violations,

discrimination, and equal employment opportunity retaliation. See, e.g., 5 U.S.C.

§ 7512 (enumerating the actions that are directly appealable to the Board under

chapter 75); Cruz v. Department of the Navy, 934 F.2d 1240, 1245-46 (Fed. Cir.

1991) (holding that, absent an otherwise appealable action, the Board lacks

jurisdiction to consider allegations of discrimination and retaliation); Greenspan

v. Department of Veterans Affairs, 94 M.S.P.R. 247, ¶ 21 (2003) (explaining that

9

the Board lacks the authority to review the workings and alleged unfairness of the

negotiated grievance procedure), reversed on other grounds, 464 F.3d 1297 (Fed.

Cir. 2006); Neal v. Department of Health & Human Services, 46 M.S.P.R. 26, 28

(1990) (stating that merit system principles do not provide an independent source

of Board jurisdiction); Berry v. Department of Justice, 31 M.S.P.R. 676, 678

(1986) (holding that the Board lacks the authority to determine whether an action

constitutes an unfair labor practice). Finally, although the appellant does not

appear to challenge this finding on review, we agree with the administrative

judge’s determination that the appellant failed to establish jurisdiction over his

appeal as an IRA appeal because he failed to show exhaustion before OSC. See

Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 7-8 (2011).

The administrative judge correctly determined that the Board may not review the

grievance decisions under 5 U.S.C. § 7121(d).

¶18 The appellant also argues that the Board should review the grievance

decision under 5 U.S.C. § 7121(d). 3 The Board typically has jurisdiction to

review a final grievance or arbitration decision under 5 U.S.C. § 7121(d) when

the following conditions are met: (1) the subject matter of the grievance is one

over which the Board has jurisdiction; (2) the appellant either (i) raised a claim of

discrimination in connection with the underlying action under 5 U.S.C.

§ 2302(b)(1) in the negotiated grievance procedure, or (ii) raises a claim of

discrimination in connection with the underlying action under 5 U.S.C.

§ 2302(b)(1) for the first time with the Board if such allegations could not be

raised in the negotiated grievance procedure; and (3) a “final decision” has been

issued. Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d,

589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). In the initial

decision, the administrative judge found that the Board lacked jurisdiction under

3

Based on our findings, we need not reach the issue of whether the appellant’s election

to pursue these matters under the negotiated grievance procedure precluded him from

also challenging them to the Board.

10

5 U.S.C. § 7121(d) to review the grievance decision because the appellant was not

appealing a final arbitration decision and because he failed to identify any

otherwise appealable action challenged in the grievance. ID at 26. The appellant

generally challenges this finding on review. PFR File, Tab 1 at 4-6.

¶19 As discussed above, the appellant has not shown that the agency subjected

him to an otherwise appealable action. ID at 10-22, 24-26. Thus, we agree with

the administrative judge’s finding that the first condition for Board review of an

arbitration decision under section 7121(d) has not been met. Moreover, the

appellant has not shown that the third condition—a “final decision” as

contemplated by section 7121(d)—has been met.

¶20 When the negotiated grievance procedure provides for arbitration as the last

resort, the “final decision” appealable to the Board under 5 U.S.C. § 7121(d) is

the arbitrator’s decision. Parks v. Smithsonian Institution, 39 M.S.P.R. 346, 349

(1988). Here, Article 10 of the collective bargaining agreement provides that,

“[i]f the decision on a grievance processed under the negotiated grievance

procedure is not acceptable, the issue may be submitted to ar bitration within

thirty (30) days following receipt of the decision by the aggrieved Party.” IAF,

Tab 8 at 40. Thus, the collective bargaining agreement provides for arbitration as

the last resort. Id. Here, however, the union did not invoke arbitration on the

appellant’s behalf after the agency issued a decision on his step-three grievance,

and, therefore, a final arbitration decision subject to Board review under

section 7121(d) was never rendered in this case. Id. at 16, 716-25. Although the

appellant argues that the union illegally denied him arbitration, the union’s

decision not to pursue arbitration on his behalf does not render the agency’s

decision on the step-three grievance “final” as to qualify for Board review under

section 7121(d). See Farmer v. Merit Systems Protection Board, 17 F.3d 1444

(Fed. Cir. 1994) (Table) (finding that the union’s decision to withdraw its request

for arbitration did not render the decision at step three “final” such that the

11

appellant could appeal the decision to the Board under section 7121(d)). 4 Thus,

as the administrative judge correctly determined, the appellant did not receive a

final arbitration decision subject to the Board’s review under section 7121(d).

¶21 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5

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

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

4

The Board may rely on unpublished Federal Circuit decisions wh en, as here, it finds

the court’s reasoning persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513,

¶ 12 (2011).

5

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

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. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

13

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

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. 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).

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.

6

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 wa rrants 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.