Gloria Marigny v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GLORIA MARIGNY, DOCKET NUMBER

Appellant, AT-0752-14-0737-I-2

v.

DEPARTMENT OF VETERANS DATE: November 7, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gloria Marigny, Milwaukee, Wisconsin, pro se.

Lois F. Prince and Bradley Flippin, Esquire, Nashville, Tennessee, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed her alleged involuntary resignation appeal for lack of jurisdiction.

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 pet itioner 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 The appellant worked for the agency as a Licensed Practical Nurse.

Marigny v. Department of Veterans Affairs, Docket No. AT-0752-14-0737-I-1,

Initial Appeal File (IAF), Tab 12, Subtab 4b. In December 2009, a Nurse

Manager issued the appellant a written counseling for repeated instances of

tardiness. IAF, Tab 24 at 50-51. In September 2010, a Chief Nurse placed the

appellant on a 4-week “orientation review” after the appellant made several

medication and documentation errors. IAF, Tab 15 at 81, Tab 24 at 48. The

review period was extended due to her absences and ultimately concluded in

December 2010. IAF, Tab 24 at 48-49. The agency did not issue any discipline

to the appellant as a result of her performance during the orientation period,

although she was resistant to feedback and did not complete required training,

and her performance during this period was mixed. Id.

¶3 In September 2011, a different Nurse Manager issued the appella nt a written

admonishment for failing to attend a fact-finding meeting as instructed and for

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absence without leave (AWOL). Id. at 10-12. Four days later, the appellant

asked her Assistant Unit Manager to assign her to work with a different

Registered Nurse for the remainder of her shift. IAF, Tab 14 at 6, Tab 27 at 125.

According to the appellant, during the course of this discussion, the Assistant

Unit Manager refused her request and “intentionally bumped into [the appellant],

using her breasts . . . three times.” IAF, Tab 14 at 6, Tab 27 at 125.

¶4 On an unidentified date, one of the appellant’s coworkers reported to

management that the appellant had failed to connect an assigned patient to his

intravenous (IV) medication for almost an hour despite alerts from the IV

equipment and three reminders from the coworker. Marigny v. Department of

Veterans Affairs, MSPB Docket No. AT-0752-14-0737-I-2, Refiled Appeal File

(RAF), Tab 29, May 18, 2016 Hearing Compact Disc (HCD), Track 1

at 01:11:50-01:15:36 (testimony of the appellant’s coworker). 2 After the

appellant’s coworker gave her the third reminder, the appellant left the floor and

another nurse performed this task. Id.

¶5 During April, May, and June 2012, different supervisors instructed the

appellant to complete mandatory training and request leave for time off that she

already had taken. IAF, Tab 12, Subtab 4b. As to the training, the appellant

began taking it at one point in April 2012, but left while it was in progress. IAF,

Tab 14 at 8, Tab 24 at 34. According to the appellant, the training, which a

supervisor told the appellant would take 20 to 30 minutes, in fact would take 1 to

2 hours, and she left to use the restroom. IAF, Tab 14 at 8, Tab 24 at 30. Based

on her failure to follow instructions, as well as her tardiness on one occasion in

April 2012, the Chief Nurse proposed the appellant’s removal for failure to

follow instructions and AWOL in July 2012. IAF, Tab 12, Subtab 4b. The

appellant resigned from her position on September 6, 2012. RAF, Tab 37, Initial

Decision (ID) at 1. In her resignation letter, she stated that she was resigning

2

It appears this incident may have occurred in March 2012. IAF, Tab 1 at 1, Tab 14

at 7.

4

“due to [a] continued hostile work environment.” IAF, Tab 1 at 4. In 2014, the

appellant filed an appeal, alleging that she resigned because of a hostile work

environment, unlawful discrimination, and reprisal for equal employment

opportunity (EEO) activity. IAF, Tab 14 at 4-12; ID at 3-4. Included among the

incidents of harassment were the events listed above, as well as alleged

mistreatment by her coworkers. IAF, Tab 14 at 4-12.

¶6 The administrative judge held the appellant’s requested hearing . ID at 1-2.

Immediately prior to, during, and after the hearing, the appellant attempted to

admit exhibits not previously entered in the record, including statements from an

approved witness who had not appeared at the hearing and from disallowed

witnesses. RAF, Tab 22 at 2-3, Tab 31, May 25, 2016 HCD, Tab 32 at 9-30. The

administrative judge rejected many of those additional exhibits and did not

consider them in making her findings. ID at 2 n.1.

¶7 The administrative judge issued an initial decision dismissing the appeal for

failure to prove Board jurisdiction. ID at 1-2, 18-19. She found that the

appellant failed to prove that some incidents with management occurred as

alleged, and that management justified its actions as to other incidents . ID

at 4-17. As to the appellant’s allegations that her coworkers subjected her to a

hostile work environment, the administrative judge found that, even if true, the

alleged incidents would not have caused a reasonable person to resign. ID

at 17-18.

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

for Review File (PFR) File, Tab 1. On review, she challenges the administrative

judge’s credibility findings regarding many of the alleged incidents, reasserts her

claim that her resignation was involuntary, and claims that the administrative

judge committed procedural errors that violated her due process rights. PFR File,

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Tab 1 at 5-8, Tab 11 at 1-3. The agency has filed a response, to which the

appellant has replied. 3 PFR File, Tabs 10-11.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge made appropriate factual findings.

¶9 The administrative judge found that the agency provided the appellant with

an orientation review because of her medication and documentation errors,

designated certain of the appellant’s absences as AWOL because she was

chronically late without obtaining prior approval, disciplined her because of this

AWOL, and proposed her removal after she failed to follow repeated instructions

to complete her mandatory training. ID at 4-6, 11-12, 14-17. The administrative

judge also found that the appellant’s Assistant Unit Manager did not assault the

appellant and that the appellant failed to connect a patient to his IV as her

coworker claimed; and that the agency did not demote the appellant, assign her an

unusually heavy workload, or unnecessarily disrupt her work as she alleged. ID

3

The appellant also has filed three motions for leave to submit additio nal documents.

PFR File, Tabs 8, 13, 20. In letters acknowledging the appellant’s motions, the Office

of the Clerk of the Board advised her that the Board’s regulations do not provide for

such pleadings, and that, for the Board to consider the proffered submissions, she must

describe the nature and need for them and show that the evidence was not readily

available before the record closed. PFR File, Tabs 9, 14, 21; see 5 C.F.R.

§ 1201.114(a)(5), (k). In her first motion, the appellant moves to submit additional

evidence to “support[] [her] claim” and “show[] Contradictory Statements.” PFR File,

Tab 8 at 1. In her second motion, she indicates that she “would like to request Motion

with leave to submit additional documents.” PFR File, Tab 13 at 1. In her third

motion, she requests to submit “New documents . . . applicable to the Laws and

Regulations of MSPB Due Process” and argument challenging an order issued by the

administrative judge. PFR File, Tab 20 at 2, 4. She attributes any delay in submitting

this argument and evidence to her attorney’s negligence; how ever, to the extent the

appellant was represented below, she was responsible for the errors of her chosen

representative. Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 6

(2014). The appellant does not appear to be represented on review. PFR File, Tab 1,

Tab 20 at 2, 4. Because the appellant has not shown that the documents she seeks to

submit were not readily available before the close of the record or described how the

proffered argument and evidence are relevant to the outcome of her petition for review,

we DENY her motions. See 5 C.F.R. § 1201.114(a)(5), (k).

6

at 4-13. In addition, she concluded that the appellant failed to provide sufficient

evidence to meet her burden to prove that other alleged events occurred, such as

her claim that her coworkers yelled at her or that her time and attendance records

were changed without explanation. ID at 4-5. Finally, the administrative judge

concluded that, even if the appellant’s coworkers made comments based on race

as alleged, the comments were insufficiently severe to cause a reasonable person

in the appellant’s position to resign. 4 ID at 17-18.

¶10 The appellant disputes these and other factual findings. PFR File, Tab 1

at 6-7. For example, she argues that she obtained prior approval for leave that

was designated as AWOL, and that the agency assigned her an unfair workload

and did not provide sufficient feedback regarding her performance. Id. The

appellant also argues without evidence that the administrative judge altered the

hearing record. Id. at 5.

¶11 We decline to disturb the administrative judge’s factual findings. In

making these findings, she assessed the witnesses’ demeanor and observations of

the events, the inconsistency of the appellant’s testimony and the record evidence,

other witnesses’ lack of motive to lie, and the inherent improbability of some of

the appellant’s assertions. 5 ID at 6, 8-13, 16-17; see Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987) (listing these and other factors an

administrative judge must consider in resolving credibility issues). The

appellant’s mere disagreement with the administrative judge’s credibility findings

4

In her petition for review, the appellant does not challenge the administrative judge’s

finding that the three or four alleged comments by her coworkers, suggesting that her

last name and her children’s names were “white” and referring t o her skin tone, were

not sufficient to establish Board jurisdiction over her appeal. PFR File, Tab 1 ; IAF,

Tab 14 at 4-5. To the extent that the appellant attempts to challenge this well -reasoned

finding in her reply to the agency’s response to the peti tion for review, we decline to

consider it. PFR File, Tab 11 at 3; see 5 C.F.R. § 1201.114(a)(4) (limiting a reply to a

response to a petition for review to the factual and legal issue s raised in the response).

5

Although the appellant argues that she was unable to clearly see one witness who was

testifying via video conference, PFR, Tab 1 at 5, there is no indication that the clarity

of the picture affected the administrative judge’s ability to observe the witness.

7

is not a sufficiently sound reason for the Board to overturn those determinations.

See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)

(finding that the Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing); Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding that mere

reargument of factual issues already raised and properly resolved by the

administrative judge below do not establish a basis for review ). Further, we

decline to grant review based on the appellant’s unsubstantiated claim that the

record was altered.

The appellant has not established that her resignation was involuntary.

¶12 A resignation is presumed to be a voluntary act and, therefore, beyond the

Board’s jurisdiction. Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 5

(2015) (discussing this presumption in the context of an alleged coerced

retirement). The presumption that a resignation is voluntary can be rebutted if the

employee can establish it was the product of duress or coercion brought on by

Government action, or of misleading or deceptive information. Id. Jurisdiction is

established in constructive adverse action appeals by showing: (1) the employee

lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful

actions that deprived her of that choice. Id.

¶13 In light of the administrative judge’s factual findings, as discussed above,

we agree that the agency had a reasonable basis to issue a warning and

admonishment for the appellant’s AWOL and failure to follow instructions, place

her on orientation review for a period of time due to medication and

documentation errors, and propose her removal for failure to follow supervisory

instructions and AWOL. ID at 3, 5-6, 11-12, 14-17; IAF, Tab 12, Subtab 4b. We

therefore conclude that the proposed removal and other management actions at

issue in this appeal were not coercive. See Morrison, 122 M.S.P.R. 205, ¶ 6

(declining to find that a retirement was coerced when the agency had reasonable

8

grounds for proposing the appellant’s removal); see also Savage v. Department of

the Army, 122 M.S.P.R. 612, ¶ 28 n.5 (2015) (stating that, to prove an AWOL

charge, an agency must show that the employee was absent without authorization

and, if the employee requested leave, that the request was properly denied),

overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31,

¶¶ 23-25; Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 556 (1996) (holding

that an agency establishes the charge of failure to follow supervisory instructions

by showing that proper instructions were given to an employee and that he failed

to follow them). We also agree with the administrative judge that the appellant

failed to show that a reasonable person in her position would have felt that she

had no realistic alternative but to resign.

¶14 The appellant also argues that the administrative judge should not have

considered her discrimination claims. PFR File, Tab 1 at 6. We disagree. The

administrative judge appropriately addressed the appellant’s allegations of

discrimination and reprisal only insofar as they related to the issue of

voluntariness. ID at 17-18; Vitale v. Department of Veterans Affairs,

107 M.S.P.R. 501, ¶ 20 (2007) (explaining that the Board addresses allegations of

discrimination and EEO reprisal in connection with an alleged involuntary

resignation only insofar as those allegations relat e to the issue of voluntariness).

Although the appellant indicated prior to the hearing that she was not raising

discrimination claims, she has not shown how the administrative judge’s

adjudication of those claims affected the outcome of this appeal. RAF, Tab 25

at 2; Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding

that an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision). The administrative judge

did not abuse her discretion with regard to exhibits, witnesses, and scheduling the

hearing.

¶15 The appellant also argues that the administrative judge improperly rejected

some of her hearing exhibits, excluded witnesses, limited her testimony and

9

examination of witnesses, and delayed the hearing. PFR File, Tab 1 at 5-6. She

asserts that these rulings were inconsistent with her due process rights. Id. at 5.

We find that the appellant’s contentions are without merit.

¶16 On October 5, 2016, the parties agreed to dismiss the case without prejudice

after each party had a change in representation. IAF, Tab 59, Tab 61, Initial

Decision. After redocketing the appeal, the administrative judge rescheduled the

hearing for May 17, 2016, at the request of the agency representative, who

indicated that she had family obligations that precluded travel on the scheduled

hearing date of May 5, 2016. RAF, Tab 15 at 4, Tab 17. Although the appellant

argues that the administrative judge improperly delayed the hearing for the

agency representative’s “family outings,” there is no evidence that the appellant

objected to the change in hearing date. PFR File, Tab 1 at 6. The hearing went

forward as scheduled on May 17, 2016, and continued to May 25, 2016. RAF,

Tabs 29, 31. Under these circumstances, we decline to find that the

administrative judge abused her discretion in delaying the hearing by less than a

month. See Bergstein v. U.S. Postal Service, 28 M.S.P.R. 495, 497 (1985)

(declining to find that a presiding official abused his discretion when he

scheduled a hearing without first consulting with the appellant, and observing that

it is common practice to schedule and reschedule hearin gs for a variety of

circumstances); 5 C.F.R. § 1201.41(b)(5)-(6) (reflecting that administrative

judges have authority to hold and regulate hearings).

¶17 In fact, the appellant herself requested and received two extensions for

filing her prehearing submissions. RAF, Tabs 11-12, 16-17. On review, she

argues that the administrative judge improperly returned submissions because the

appellant did not serve the agency, even though these submiss ions were

accompanied by certificates of service. PFR File, Tab 1 at 5, 7-8; RAF, Tabs 14,

23, 35-36. She does not provide copies of her certificates of service or any other

evidence that she mailed these submissions to the agency. PFR File, Tabs 1, 11.

Nor does she identify the documents that she believes the administrative judge

10

improperly excluded from evidence at the hearing, or explain why they should

have been admitted. Id. Under these circumstances, we decline to find that the

administrative judge abused her broad discretion on these matters. See

McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,

¶ 24 (2011) (declining to find that an administrative judge abused his discretion

by rejecting the appellant’s proffer of documents on the ground that they were not

included as exhibits in his prehearing submissions), aff’d, 497 F. App’x 4 (Fed.

Cir. 2012); 5 C.F.R. § 1201.41(b)(3), (8) (discussing the authority of

administrative judges to, as pertinent here, rule on offers of proof and exhibit

lists).

¶18 The appellant also appears to argue that she was only permitted four

witnesses. However, the record reflects that the administrative judge approved

11 of the appellant’s 21 requested witnesses. RAF, Tab 22 at 2, Tab 25 at 2.

Seven of these witnesses, plus the appellant, testified at th e hearing. PFR File,

Tabs 29, 31. The appellant argues that the administrative judge did not approve

the most relevant witnesses. PFR File, Tab 1 at 5. However, she does not explain

the basis for her disagreement. Id. Finally, the appellant argues that the

administrative judge limited her to topics that the agency’s attorney “talked

about,” and prematurely ended her testimony. Id. Because the appellant has

failed to provide any specific arguments or record citations to substantiate her

claims, we decline to find that she has shown that the administrative judge

improperly limited the witnesses or testimony. See Scoggins v. Department of the

Army, 123 M.S.P.R. 592, ¶ 20 (2016) (finding that the administrative judge did

not abuse her broad discretion in controlling the proceedings by limiting the

agency’s cross-examination of the appellant); 5 C.F.R. § 1201.41(b)(8) (providing

that administrative judges have the authority to rule on witnesses). We also find

that the administrative judge did not violate the appellant’s due process rights.

See Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed.

Cir. 1999) (observing that the ultimate inquiry in connection with an alleged due

11

process violation is whether it was “so substantial and so likely to cause prejudice

that no employee can fairly be required to be subjected to a deprivation of

property under such circumstances”).

¶19 Accordingly, we deny the appellant’s petition for review and affirm the

initial decision dismissing her involuntary resignation appeal for lack of

jurisdiction.

NOTICE OF APPEAL RIGHTS 6

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 case s 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

6

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, cost s, 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. 7 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.

7

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 Pr esident 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.