Opinion

Randall Desjardin v. United States Postal Service

Court
Merit Systems Protection Board
Filed
Feb 23, 2023
Status
Unpublished
Cited by
0 cases
Authority
More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RANDALL S. DESJARDIN, DOCKET NUMBER

Appellant, SF-0353-16-0641-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: February 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Randall S. Desjardin, Grove, Oklahoma, pro se.

Michael R. Tita, Esquire, Sandy, Utah, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Vice Chairman Harris recused herself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which granted, in part, the appellant’s

request for restoration. Generally, we grant petitions such as these only in the

following circumstances: the initial decision contains erroneous findings of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 neither party

has established any basis under section 1201.115 for granting the petition for

review or cross petition for review. Therefore, we DENY the petition for review

and the cross petition for review. However, for the reasons discussed below, we

VACATE the initial decision and DISMISS this appeal for lack of jurisdiction.

BACKGROUND

¶2 The agency employs the appellant as a City Carrier. Initial Appeal File

(IAF), Tab 1 at 8. On June 22, 2016, he submitted a written request to the

agency’s local injury compensation manager to return to work following an

absence due to a compensable injury and a Form CA-17 (Duty Status Report)

completed by his doctor that listed his medical restrictions. IAF, Tab 7 at 80-81.

In his request, the appellant stated that he believed he could case mail, work

“dutch doors,” and perform union steward duties. 2 Id. at 80. According to the

Form CA-17, the appellant could return to work with the following restrictions:

intermittent lifting of not more than 10 pounds; alternate sitting and standing

every 15 minutes; standing in one spot for no more than 3 minutes; using wheeled

2

As noted in the initial decision, “casing” mail is the task a mail carrier undertakes

each morning of sorting his mail prior to delivering his route. IAF, Tab 82, Initial

Decision at 2 n.2. “Dutch door” duties consist of the following: assisting customers to

pick up their Post Office box keys; retrieving customer parcels, packages and certified

mail; and performing a variety of office functions, such as retrieving overflow mail,

picking up “hold” mail from carrier cases, and researching changes of address. Id.

3

carts when pushing or pulling; intermittent pushing, pulling, grasping, and

reaching above shoulder level; and no driving, climbing, twisting, bending or

stooping. 3 Id. at 81.

¶3 On July 21, 2016, the appellant filed this appeal alleging the agency had

failed to respond to his June 22, 2016 restoration request. IAF, Tab 1 at 5. He

also alleged that the agency had discriminated against him on the basis of

disability, failed to reasonably accommodate him, and retaliated against him for

his equal opportunity employment and prior Board filings. Id.

¶4 On July 26, 2016, the agency conducted a search of the local commuting

area (LCA) for available work within the appellant’s medical restrictions . IAF,

Tab 7 at 27, 29-79. On August 5, 2016, the agency notified the appellant that it

had conducted a search for available work within his medical restrictions in all

crafts and on all tours, both within facility and throughout the LCA, but that it

was unable to identify any such work. Id. at 23-25. By separate letter sent to the

appellant that same day, the Customer Service Manager confirmed that the agency

was unable to find work within his medical restrictions. Id. at 22. He stated that,

in addition to a search at the facility and within the LCA, he had considered the

appellant’s requests to perform casing, dutch door, and union steward duties. Id.

He informed the appellant that union steward duties were not assignable through

the return-to-work process and that dutch door duties were not available and, in

any event, were beyond the appellant’s medical restrictions. Id. Although he

indicated that casing duties were available, his preliminary conclusion was that

those duties also were beyond the appellant’s medical restrictions. Id. He

informed the appellant, however, that he had requested a worksite evaluation of

the activities associated with casing mail and would wait to make a final

determination upon receipt of the worksite evaluation report. Id.

3

While the appellant’s treating physician checked the box indicating that the appellant

could drive intermittently, his handwritten notes on the form stated “no driving.” IAF,

Tab 7 at 81.

4

¶5 On August 8, 2016, an Occupational Health Nurse Administrator for the

agency performed a worksite evaluation to assess the physical requirements of

performing carrier office duties, including casing mail and performing dutch door

duties. IAF, Tab 7 at 18-20. After reviewing the worksite evaluation, the

Customer Services Manager made a final determination that the appellant would

be unable to perform either the casing or dutch door duties given his medical

restrictions. Id. at 12. The agency did not offer any work to the appellant in

response to his June 22, 2016 request for restoration.

¶6 In an order on jurisdiction, the administrative judge informed the appellant

of his jurisdictional burden to nonfrivolously allege that he had partially

recovered from a compensable injury and that the agency arbitrarily and

capriciously denied his request to return to work. IAF, Tab 2 at 2 -4. In response,

the appellant argued, in relevant part, that the agency’s denial of his request for

restoration was arbitrary and capricious because there was work available that he

could perform, including casing mail, dutch door, and union steward duties. IAF ,

Tab 4. The administrative judge found that these allegations were sufficient to

establish jurisdiction. IAF, Tab 15 at 2.

¶7 After holding the appellant’s requested hearing, the administrative judge

issued an initial decision granting, in part, the appellant’s request for restoration.

IAF, Tab 82, Initial Decision (ID). She found that the agency’s search for work

was adequate and that its 1-month delay between receiving the Form CA-17 and

conducting the search was not unduly long. ID at 7-9. The administrative judge

rejected the appellant’s argument that the agency was required to assign him to

perform union steward duties as part of its restoration obligation. ID at 10 -12.

She also found that the agency did not act arbitrarily and capriciously in den ying

the appellant’s request to perform dutch door or other office duties, such as

boxing mail and lobby assistant duties, because these duties involved almost

constant standing and walking and, in any event, he did not demonstrate that any

such work was available. ID at 14-15. However, she found that the agency’s

5

denial of the appellant’s request to perform casing duties was arbitrary and

capricious because he previously performed casing duties while under similar

medical restrictions and because he provided credible testimony that there were

certain accommodations and physical adjustments that would allow him to

perform casing duties within his restrictions. ID at 13-14, 16. She also found

that there was a significant amount of casing work available du ring the relevant

time period and ordered the agency to retroactively restore the appellant to a

6-hour per day modified duty assignment casing mail. ID at 16-17, 31. She

addressed the appellant’s claims of discrimination, retaliation, and harmful

procedural error but found no merit to any of these claims. ID at 17-30.

¶8 The agency has filed a petition for review of the initial decision , the

appellant has responded, and the agency has replied. Petition for Review (PFR)

File, Tabs 1, 5, 8. The appellant has also filed a cross petition for review, and the

agency has responded. 4 PFR File, Tabs 5, 9.

ANALYSIS

¶9 The Federal Employees’ Compensation Act and the implementing

regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353

provide, inter alia, that Federal employees who suffer compensable injuries enjoy

certain rights to be restored to their previous or comparable positions. Kingsley

v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b).

Under OPM’s regulations, such employees have different substantive rights based

4

On review, the appellant asserts that he has evidence that was not previously

available. PFR File, Tab 5 at 24-33. We have reviewed the documents but find that the

appellant has not shown that those documents were unavailable prior to the close of the

record below, despite his due diligence. Therefore, the Board will not consider them.

See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.

§ 1201.115(d). Regarding the sworn statement submitted with the petition for review,

although the statement is dated after the close of the record below, the appellant ha s not

shown that the information contained in the document, not just the document itself, was

unavailable despite his due diligence. PFR File, Tab 5 at 31-32; see Grassell v.

Department of Transportation, 40 M.S.P.R. 554, 564 (1989); 5 C.F.R. § 1201.115(d).

6

on whether they have fully recovered, partially recovered, or are physically

disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.

365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees, like the appellant,

are those who, “though not ready to resume the full range” of duties, have

“recovered sufficiently to return to part-time or light duty or to another position

with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9;

5 C.F.R. § 353.102.

¶10 The Board has jurisdiction to review whether an agency’s denial of

restoration to a partially recovered employee was arbitrary and capricious.

Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103-04 (Fed. Cir.

2011), superseded in part by regulation on other grounds as stated in Kingsley ,

123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c). Thus, to establish jurisdiction

over a claim of denial of restoration as a partially recovered employee, an

appellant is required to make nonfrivolous allegations of the following: (1) he

was absent from his position due to a compensable injury; (2) he recovered

sufficiently to return to duty on a part-time basis or to return to work in a position

with less demanding physical requirements than those previously required of him;

(3) the agency denied his request for restoration; and (4) the denial was arbitrary

and capricious because of the agency’s failure to perform its obligation under

5 C.F.R. 353.301(d) to search within the local commuting area for vacant

positions to which it can restore the employee and to consider him for any such

vacancies. 5 See Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016);

5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, he is

entitled to a hearing at which he must prove the merits of his restoration appeal,

5

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

7

i.e., all four of the above elements, by a preponderance of the evidence. 6

Kingsley, 123 M.S.P.R. 365, ¶ 12; 5 C.F.R. § 1201.57(c)(4).

¶11 Here, it is undisputed that the appellant satisfied the first three elements.

IAF, Tab 7 at 80-84, Tab 15 at 2; ID at 6. Regarding the fourth criterion, the

administrative judge found that the appellant’s allegation that there were dutch

door, casing, and union steward duties available at the facility that he could

perform constituted a nonfrivolous allegation that the agency’s denial of

restoration was arbitrary and capricious. 7 IAF, Tab 15 at 2. On the merits, she

concluded that the appellant proved that the agency’s denial of his request for

restoration was arbitrary and capricious insofar as it failed to offer him 6 hours of

work per day casing mail at the facility. ID at 16-17. The administrative judge’s

finding that the agency’s failure to offer the appellant available work that he

could perform, regardless of whether the duties constituted an established vacant

position, rests on the Board’s decision in Latham v. U.S. Postal Service,

117 M.S.P.R. 400 (2012). ID at 5-6. In Latham, the Board held that, when an

agency voluntarily assumes restoration obligations beyon d the “minimum”

requirements of 5 C.F.R. § 353.301(d), the agency’s failure to comply with those

agency-specific requirements is arbitrary and capricious for purposes of

establishing Board jurisdiction. Id., ¶¶ 12, 14, 26. As the Board in Latham

recognized, the Postal Service’s rules obligate it to offer modified assignments

when the work is available regardless of whether the duties constitute those of an

established position. See Latham, 117 M.S.P.R. 400, ¶ 41. Thus, under existing

6

A preponderance of the evidence is the degree of relevant evidence that a reasona ble

person, considering the record as a whole, would accept as sufficient to find that a

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

7

The administrative judge also stated, in part, that the appellant alleged that the agency

“has work available for him at the [facility] consisting of h is former route (route

2995).” IAF, Tab 15 at 2. To be clear, the appellant alleged that the “work [he]

identified were [e]ssential [f]unctions of [his] assigned position ([route] 2995),” not, as

the administrative judge appeared to state, that he could perform the essential duties of

his prior position. IAF, Tab 4 at 6.

8

precedent, the administrative judge properly considered whether the agency

properly searched for and provided available duties to the appellant regardless of

whether the duties constitute those of an established position . ID at 10-16.

¶12 However, after the initial decision in this appeal was issued, the Board

issued a decision in Cronin v. U.S. Postal Service, 2022 MSPB 13, overruling

Latham and its progeny to the extent they held that a denial of restorat ion may be

arbitrary and capricious on the basis of an agency’s failure to comply with its

self-imposed restoration obligations. Id., ¶ 20. The Board in Cronin held that,

although agencies may undertake restoration efforts beyond the minimum effort

required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with

self-imposed obligations cannot itself constitute a violation of 5 C.F.R.

§ 353.301(d) such that a resulting denial of restoration would be rendered

arbitrary and capricious for purposes of establishing Board jurisdiction under

5 C.F.R. § 353.304(c). Cronin, 2022 MSPB 13, ¶ 20. Rather, as explained in

Cronin, the issue before the Board is limited to whether the agency failed to

comply with the minimum requirement of 5 C.F.R. § 353.301(d), i.e., to search

within the local commuting area for vacant positions to which it can restore a

partially recovered employee and to consider him for any such vacancies. Id.

The Board in Cronin further held that, contrary to its prior suggestion in Latham,

claims of prohibited discrimination or reprisal cannot serve as an “alternative

means” of showing that a denial of restoration was arbitrary and capricious. Id.,

¶ 21. Because the Board issued Cronin while this appeal was pending, it is given

retroactive effect and applies to this appeal. See Desjardin v. U.S. Postal Service,

2023 MSPB 6, ¶ 18 n.8.

¶13 In light of Cronin, to establish jurisdiction over this appeal, the appellant

must nonfrivolously allege that the agency failed to search within the local

commuting area for vacant positions to which it can restore him and to consider

him for any such vacancies. Cronin, 2022 MSPB 13, ¶ 20. The record reflects

that the agency searched a 50-mile radius for work within the medical restrictions

9

identified in the appellant’s June 14, 2016 Form CA-17 but that it did not identify

any available positions. IAF, Tab 7 at 27, 29-79, 81. The appellant has not

challenged the scope of the LCA or proffered any evidence that the agency’s

50-mile radius search failed to encompass his LCA. ID at 9; PFR File, Tab 5. In

addition, he has not alleged that there were any vacant funded positions within his

restrictions, either in the facility or LCA, to which he could have been assigned.

IAF, Tab 4; PFR File, Tab 5. Rather, as noted above, he argues that there was

work available—namely, casing, dutch door, and union steward duties—that he

could have performed but that the agency failed to find and offer him these

duties. IAF, Tab 4; PFR File, Tab 5 at 8-18. Under Cronin, however, this

contention does not constitute a nonfrivolous allegation that the denial of

restoration was arbitrary and capricious because these duties do not constitute the

essential functions of an established position. 8 See Cronin, 2022 MSPB 13, ¶ 20.

¶14 As noted in the initial decision, the appellant also argued that the search

was defective because it did not specifically identify the duties he believed he

could perform. ID at 9. As the administrative judge correctly found, however,

the agency is required only to search for available positions within the appellant’s

medical restrictions; there is no requirement that the agency identify the specific

duties an employee wishes to perform in its search for work. Id.; 5 C.F.R.

§ 353.301(d). Moreover, under Cronin, the agency’s failure to search for work

that does not constitute the essential functions of an established position would

not render a resulting denial of restoration arbitrary and capricious. See Cronin,

2022 MSPB 13, ¶ 20.

¶15 The appellant also argues that the agency’s delay in conducting the search

for work constitutes an arbitrary and capricious denial of restoration. In the

initial decision, the administrative judge found that agency’s delay between

8

As the administrative judge correctly found, union duties are not themselves a position

to which the appellant could have been reassigned. ID at 10 -12. 9-11; Desjardin,

2023 MSPB 6, ¶ 19, n.10.

10

receiving the updated Form CA-17 on June 22, 2016, and conducting a search for

work on July 26, 2016, was not unduly long. ID at 7. On review, the appellant

argues that the agency received a Form CA-17 returning him to work with

restrictions on May 27, 2016, and delayed 2 months, rather than 1 month, before

conducting the search. 9 PFR File, Tab 5 at 8. Although an agency’s delay in

conducting a work search when work is “clearly available” or when the delay is

“extreme and unexplained” may constitute an arbitrary and capric ious denial of

restoration, a 2-month delay is not extreme. Chen v. U.S. Postal Service,

114 M.S.P.R. 292, ¶¶ 3, 5, 11 (2010) (finding a 3-month delay between when an

employee is placed off work and the completion of a search was not “very

lengthy”), overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 10.

Moreover, the appellant has not alleged that there was a vacant position “clearly

available,” as required under Cronin, only that there were various duties

available. Thus, the appellant’s contention regarding the agency’s 2 -month delay

does not constitute a nonfrivolous allegation that the agency arbitrarily and

capriciously denied him restoration.

¶16 In sum, the agency properly searched within the local commuting area for

vacant positions to which it could restore the appellant but was unable to find any

vacant funded position within his restrictions. Therefore, we find that the agency

has fulfilled its minimum obligations under 5 C.F.R. § 353.301(d) and that the

appellant has failed to nonfrivolously allege that his denial of restoration was

arbitrary and capricious. Accordingly, we VACATE the initial decision and find

that the Board lacks jurisdiction over the appellant’s partial restoration appeal. In

the absence of an otherwise appealable action, we als o lack jurisdiction to address

9

The record reflects that an Office of Workers’ Compensation (OWCP) Rehabilitation

Counselor contacted the manager of the agency’s local Health and Resource

Management Department on May 27, 2016, to inform her that OWCP had determined

that the appellant could return to work and faxed her an April 12, 2016 Form CA-17

reflecting that the appellant could return to work with restrictions. IAF, Tab 10 at 14,

Tab 11 at 15, Tab 65 at 14.

11

the appellant’s claims of discrimination and retaliation. See Cronin, 2023 MSPB

6, ¶ 22.

NOTICE OF APPEAL RIGHTS 10

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 optio n 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

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

§ 7703(b)(1)(A).

10

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

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.uscourt s.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

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

13

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

14

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 a ny court

of appeals of competent jurisdiction. 11 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.

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

11

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

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.