# Darek Kitlinski v. Department of Justice

> Merit Systems Protection Board · March 23, 2023 · 2023 MSPB 13

URL: https://www.frixlaw.com/law-library/cases/9381915

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 23, 2023
- **Citations:** 2023 MSPB 13
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9381915

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 13
Docket No. SF-4324-15-0088-M-1

Darek J. Kitlinski,
Appellant,
v.
Department of Justice,
Agency.
March 23, 2023

Darek J. Kitlinski, Arlington, Virginia, pro se.

Clairanne Mariah Porter Wise, Springfield, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

OPINION AND ORDER

¶1 This Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal is before the Board on remand from the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). The sole issue before the Board
is whether the administrative judge correctly found that the appellant failed to
establish jurisdiction over his appeal based on his claim that the agency created a
hostile work environment in retaliation for his protected activity. For the reasons
set forth below, we AFFIRM the administrative judge’s findings and DISMISS
the appeal for lack of jurisdiction.
2

BACKGROUND
¶2 The facts of this case are set forth more fully in the administrative judge’s
initial decision and the Federal Circuit’s opinion. Kitlinski v. Department of
Justice, MSPB Docket No. SF-4324-15-0088-I-1, Initial Decision (ID) at 2-5
(Feb. 13, 2015); Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374,
1376-79 (Fed. Cir. 2017). Briefly, the appellant was a Supervisory Special Agent
with the agency’s Drug Enforcement Administration (DEA). ID at 2. He was
also a reservist in the United States Coast Guard (Coast Guard) and had been
recalled to active duty for an extended period beginning in 2011. Kitlinski,
857 F.3d at 1376. Prior to filing this appeal, the appellant had filed two USERRA
appeals and an equal employment opportunity (EEO) complaint against the
agency. Id.
¶3 According to the appellant, on September 23, 2014, he appeared at DEA
headquarters for a deposition in his EEO case. Id. After the deposition was
finished, he claimed that he returned to his car and discovered under the hood “a
Blackberry device bearing a DEA sticker.” Id. “He suspected that the device had
been planted by agency officials . . . and that the device was intended to be used
to track his location and record his conversations.” Id. The appellant’s wife, who
was also an agency employee, turned the Blackberry over to their attorney and
notified the agency’s Office of Professional Responsibility (OPR) of the
matter. Id.
¶4 OPR summoned the appellant’s wife to an interview and directed her to
return the Blackberry to the agency. Id. Subsequently, two OPR investigators
traveled to the appellant’s Coast Guard duty station and directed the appellant to
turn over the Blackberry and to appear at OPR’s offices for an interview. Id. The
appellant did not appear for the interview, and there is no indication in the record
that either the appellant or his wife ever returned the Blackberry. Id. at 1378.
The appellant does not claim that the agency took any action against him as a
result.
3

¶5 The appellant filed the instant USERRA appeal and requested a hearing.
Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-15-0088-I-1,
Initial Appeal File (IAF), Tab 1. He raised the following four claims: (1) the
agency discriminated against him in violation of 38 U.S.C. § 4311(a) by denying
him a benefit of employment; (2) the agency discriminated against him in
violation of 38 U.S.C. § 4311(a) by creating a hostile work environment; (3) the
agency retaliated against him for his prior USERRA activity in violation of
38 U.S.C. § 4311(b) by discriminating against him and taking adverse
employment actions against him; and (4) the agency retaliated against him for his
prior USERRA activity in violation of 38 U.S.C. § 4311(b) by creating a hostile
work environment. Kitlinski, 857 F.3d at 1379-82. The administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 15.
He found that the appellant failed to make a nonfrivolous allegation that he was
subjected to a denial of a benefit of employment or any other entitlement listed in
38 U.S.C. § 4311(a) on the basis of his uniformed service or obligation to
perform such service. ID at 6-7, 15. He also found that the appellant failed to
make a nonfrivolous allegation that the agency took an adverse employment
action or otherwise discriminated in employment against him in retaliation for
protected USERRA activity under 38 U.S.C. § 4311(b). ID at 8-12, 15. Finally,
he found that the appellant failed to allege facts which, if proven, would rise to
the level of a hostile work environment under either section 4311(a) or
section 4311(b). ID at 12-15. The appellant filed a petition for review, and the
Board issued an Opinion and Order affirming the initial decision. Kitlinski v.
Department of Justice, 123 M.S.P.R. 41 (2015), aff’d in part, vacated in part, and
remanded, 857 F.3d 1374 (Fed. Cir. 2017).
¶6 The appellant then filed a petition for judicial review with the Federal
Circuit. Kitlinski, 857 F.3d at 1376. On review, the Board, as respondent, noted
that its Opinion and Order did not address whether the appellant had made a
nonfrivolous allegation that the agency subjected him to a hostile work
4

environment in retaliation for his prior USERRA activity, in violation of
38 U.S.C. § 4311(b). Id. at 1379. The Board therefore requested that the appeal
be remanded for it to address this issue in the first instance. Id. The court issued
an opinion affirming the Board’s final decision in part and vacating and
remanding in part. Id. at 1382. The court affirmed the Board’s findings that the
appellant failed to make a nonfrivolous allegation of jurisdiction with respect to
the first three claims described above. Supra ¶ 5; Kitlinski, 857 F.3d at 1380-82.
The court vacated the Board’s order, however, and remanded for further
proceedings on the fourth claim. Kitlinski, 857 F.3d at 1382.

ANALYSIS
¶7 At issue here is the appellant’s claim that, in retaliation for exercising his
rights under USERRA, the agency created a hostile work environment by
allegedly placing a Blackberry device under the hood of his car and summoning
him to an investigative interview. IAF, Tab 12 at 12-13. The question is whether
this amounts to a nonfrivolous allegation of Board jurisdiction under 38 U.S.C.
§ 4324. For the following reasons, we find that it does not.
¶8 USERRA’s prohibition on retaliation in 38 U.S.C. § 4311(b) provides that:
[a]n employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investigation under
this chapter, or (4) has exercised a right provided for in this chapter.
To establish jurisdiction over a USERRA retaliation claim under this subsection,
an appellant must make nonfrivolous allegations that (1) he engaged in activity
protected under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment
or took an adverse employment action against him, and (3) his protected activity
5

was a motivating factor in the agency’s action. 1 See 38 U.S.C. § 4311(b), (c)(2);
Hayden v. Department of the Air Force, 812 F.3d 1351, 1363 (Fed. Cir. 2016);
5 C.F.R. § 1201.57(a)(3), (b). In this case, it is undisputed that the appellant
engaged in activity protected under 38 U.S.C. § 4311(b). Specifically, he
exercised a right provided for under 38 U.S.C. § 4324(b) when he filed his two
previous USERRA appeals, Kitlinski v. Department of Justice, MSPB Docket
No. SF-4324-14-0184-I-1, and Kitlinski v. Department of Justice, MSPB
Docket No. SF-4324-14-0687-I-1, on December 13, 2013, and July 8, 2014,
respectively. The remaining question before us is whether the appellant made a
nonfrivolous allegation that the agency “discriminate[d] in employment” or took
an “adverse employment action” against him by creating a hostile work
environment. 38 U.S.C. § 4311(b). As explained below, we answer that question
in the negative.
¶9 As an initial matter, we find that, considering the legislative history and
remedial purpose of USERRA, it is appropriate to interpret USERRA’s
anti-retaliation provision as encompassing hostile work environment claims. The
Board previously found that a hostile work environment claim may lie under
USERRA’s anti-discrimination provision, set forth in 38 U.S.C. § 4311(a), to the
extent that the creation of a hostile work environment amounts to the denial of a
“benefit of employment.” 2 Petersen v. Department of the Interior, 71 M.S.P.R.

1
If an appellant previously sought corrective action from the Department of Labor in
connection with his claim under 38 U.S.C. § 4322, he also must prove by preponderant
evidence that he has exhausted his administrative remedies. See 38 U.S.C. § 4322(e);
Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 7 (2005); 5 C.F.R.
§§ 1201.57(c)(1), 1208.11. Because the appellant filed the instant appeal directly with
the Board, this jurisdictional element is inapplicable to this case.
2
Section 4311(a) states the following:
[a] person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in a
uniformed service shall not be denied initial employment, reemployment,
6

227, 235-39 (1996). In Petersen, we determined that one of the basic purposes of
USERRA is to prohibit discrimination because of an individual’s service in the
uniformed services, and that an expansive interpretation of the statute was
intended by Congress. Id. at 235-36. Further, we noted that the courts
consistently have construed other anti-discrimination statutes as proscribing
harassment in the workplace, and concluded that harassment on account of
uniformed service, which is sufficiently pervasive to alter the conditions of
employment and create an abusive working environment, is a violation of
38 U.S.C. § 4311(a). Id. at 237-39.
¶10 We find that USERRA’s anti-retaliation provision similarly proscribes a
hostile work environment. Section 4311(b) prohibits “discriminat[ion] in
employment against” or “tak[ing] any adverse employment action against”
individuals who engage in activity protected by that provision. In other words, an
employer may not retaliate against an individual for exercising his rights under
USERRA. Hayden, 812 F.3d at 1362-63. Statutes should be interpreted in a
manner that is consistent with the intent of Congress. Hellebrand v. Secretary of
the Department of Health and Human Services, 999 F.2d 1565, 1570-71 (Fed. Cir.
1993). The legislative history of USERRA explicitly states that it was intended
“to prohibit discrimination or acts of reprisal” against individuals who file a
complaint, assist in an investigation, or testify in a proceeding under that
statutory scheme, and that USERRA is to be “liberally construed.” H.R. Rep.
No. 103-65(I), at 17, 19, 24 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449,
2450, 2452, 2457. As the Federal Circuit has explained, any “interpretive doubt

retention in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for membership,
performance of service, application for service, or obligation.
38 U.S.C. § 4311(a). USERRA defines the term “benefit of employment” as “the terms,
conditions, or privileges of employment, including any advantage, profit, privilege,
gain, status, account, or interest . . . that accrues by reason of an employment contract
or agreement or an employer policy, plan, or practice.” See 38 U.S.C. § 4303(2).
7

is to be resolved in the veteran’s favor.” Kirkendall v. Department of the Army,
479 F.3d 830, 846 (Fed. Cir. 2007) (en banc) (citing Brown v. Gardner, 513 U.S.
115, 117-18 (1994)).
¶11 Our conclusion is confirmed by certain amendments to USERRA in 2011.
Specifically, in Carder v. United Airlines, Inc., 636 F.3d 172 (5th Cir. 2011), the
U.S. Court of Appeals for the Fifth Circuit held that USERRA did not create a
cause of action based on a hostile work environment. Specifically, the court
observed that “[i]n originally permitting a plaintiff to assert a hostile work
environment claim in a Title VII case, the Supreme Court relied heavily on
Title VII’s language prohibiting discrimination with respect to the ‘terms,
conditions, or privileges of employment.’” Carder, 636 F.3d at 177 (citing
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63-66 (1986)). However, this
language was absent from USERRA, and the court found that its omission was
intentional. The court therefore declined to read the USERRA term “benefits of
employment” to encompass “terms, conditions, or privileges of employment,” and
thus held that the plaintiff could not raise a hostile work environment claim under
USERRA. Id. at 178-81. Eight months after the Carder decision was issued,
Congress clarified the term “benefits of employment” by amending 38 U.S.C.
§ 4303(2) to state specifically that it means “the terms, conditions, or privileges
of employment.” Vow to Hire Heroes Act of 2011, Pub. L. No. 112-56, § 251,
125 Stat. 711, 729. Based on Congress’s legislative response to the Carder
decision, we find unambiguous congressional intent that hostile work
environment claims be cognizable under USERRA.
¶12 Moreover, we previously have recognized a prohibition against a retaliatory
hostile work environment under the Whistleblower Protection Enhancement Act
of 2012, a statute that similarly prohibits retaliation for protected activity. See
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015) (relying upon
legislative history to broadly interpret a prohibition against retaliating for
whistleblowing by making “any other significant change in duties,
8

responsibilities, or working conditions” to include harassment “that could have a
chilling effect on whistleblowing”), overruled in part by Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Additionally, Federal courts
have concluded that hostile work environment claims are available under other
similar anti-retaliation statutory provisions. E.g., Gowski v. Peake, 682 F.3d
1299, 1311-12 (11th Cir. 2012) (recognizing the existence of retaliatory hostile
work environment claims under Title VII for the first time in the U.S. Court of
Appeals for the Eleventh Circuit and acknowledging that every other Federal
circuit court already had recognized such claims); Floyd v. Lee, 85 F. Supp. 3d
482 (D.D.C. 2015) (acknowledging the availability of a retaliatory hostile work
environment claim under the Americans with Disabilities Act). Because many of
the considerations underpinning the recognition of a hostile work environment
claim under 5 U.S.C. § 4311(a), see Petersen, 71 M.S.P.R. at 235-39, similarly
exist for section 4311(b), we conclude that it is appropriate to permit hostile work
environment claims under both USERRA’s anti-discrimination and
anti-retaliation statutes. Furthermore, the Federal Circuit in this matter at least
implicitly concluded that a hostile work environment claim was cognizable under
38 U.S.C. § 4311(b), as reflected in its remand of that claim to the Board for
adjudication here. Kitlinski, 857 F.3d at 1382.
¶13 Having found that a hostile work environment claim is available under
38 U.S.C. § 4311(b), we consider the appropriate standard for addressing such a
claim. In determining what standard to apply to hostile work environment claims
arising under USERRA’s anti-discrimination provision, the Board recognized that
courts that have considered this issue have looked to the elements of a hostile
work environment claim under Title VII. Kitlinski, 123 M.S.P.R. 41, ¶ 18; see
Montoya v. Orange County Sheriff’s Department, 987 F. Supp. 2d 981, 1012-15
(C.D. Cal. 2013). Applying those standards, the courts have held that, to
establish such a claim, an employee must establish a “pattern of ongoing and
persistent harassment severe enough to alter the conditions of employment,”
9

“prov[ing] that his workplace was both objectively and subjectively offensive”
and that “any harassment took place on account of his protected status as a
military member.” Kitlinski, 123 M.S.P.R. 41, ¶ 18 (quoting Montoya, 987 F.
Supp. 2d at 1016-17, and citing Hanson v. County of Kitsap, 21 F. Supp. 3d 1124,
1146-47 (W.D. Wash. 2014)).
¶14 We similarly find here that Title VII provides a useful analog for
establishing the elements of a USERRA hostile work environment claim under
38 U.S.C. § 4311(b). See Kitlinski, 123 M.S.P.R. 41, ¶ 19. Accordingly, we hold
that, to establish the Board’s jurisdiction over a hostile work environment claim
arising under USERRA’s anti-retaliation provision, an appellant must
nonfrivolously allege that he was subjected to a pattern of ongoing and persistent
harassing behavior that was sufficiently severe or pervasive to amount to an
“adverse employment action” or “discriminat[ion] in employment.” See
38 U.S.C. § 4311(b); Montoya, 987 F. Supp. 2d at 1017; Kitlinski, 123 M.S.P.R.
41, ¶ 19. An appellant also must nonfrivolously allege that his protected activity
was a motivating factor in the alleged acts of hostility to bring the challenged
conduct within the scope of USERRA’s anti-retaliation provision. See 38 U.S.C.
§ 4311(c)(2) (stating that an employer violates section 4311(b) when an
individual’s protected activity is a “motivating factor in the employer’s action,
unless the employer can prove that the action would have been taken in the
absence of such person’s enforcement action, testimony, statement, assistance,
participation, or exercise of a right”); see also Hayden, 812 F.3d at 1363 (setting
forth the standard for establishing jurisdiction over a USERRA retaliation claim).
In considering whether an appellant has nonfrivolously alleged that he was
subjected to a hostile work environment based on his protected activity under
USERRA, we apply the Board’s liberal approach to determining jurisdiction in a
USERRA appeal, under which the relative weakness of an appellant’s allegations
concerning the seriousness of the alleged acts should not serve as a basis for
10

jurisdictional dismissal. Swidecki v. Department of Commerce, 113 M.S.P.R.
168, ¶ 6 (2010).
¶15 As the Federal Circuit found in this case, 38 U.S.C. § 4311(b) “is limited to
barring acts of discrimination in employment and adverse employment actions.”
Kitlinski, 857 F.3d at 1381. The appellant’s retaliatory hostile work environment
claim is grounded in two agency actions—the alleged planting of the Blackberry
device in his vehicle and the OPR investigators summoning him to an interview.
IAF, Tab 12 at 12-13. However, the Federal Circuit in its remand decision
already concluded that these two actions did not constitute “adverse employment
actions” or “discrimination in employment,” as they did not deny the appellant “a
benefit that inures to him by virtue of his employment with the agency.”
Kitlinski, 857 F.3d at 1382. Concerning the interview, the court’s finding was at
least in part due to the fact that, at the time of the investigation in question, the
appellant had been on long-term leave from his employing agency and was
serving with the Coast Guard. Id. Aggregating these two events in an effort to
establish a hostile work environment claim under 38 U.S.C. § 4311(b) is
unavailing—the two actions still had no bearing on the appellant’s employment.
Thus, we find that the appellant has not made a nonfrivolous allegation that the
agency discriminated in employment or took an adverse employment action
against him, as required to establish jurisdiction over his retaliatory hostile work
environment claim.

ORDER
¶16 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
11

NOTICE OF APPEAL RIGHTS 3
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
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:

3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12

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
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
13

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
14

disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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

4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15

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/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9381915. Public record. Not legal advice.