Opinion

Zachery Merritt v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 13, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ZACHERY T. MERRITT, DOCKET NUMBER

Appellant, SF-0752-16-0664-I-1

DEPARTMENT OF THE ARMY, DATE: April 13, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James M. Hackett, Esquire, Fairbanks, Alaska, for the appellant.

Emily L. Macey, Esquire, Fort Wainwright, Alaska, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

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

dismissed his removal appeal as untimely filed. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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 petition 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 agency removed the appellant from his position as a Police Officer

based on multiple charges of misconduct. Initial Appeal File (IAF), Tab 9

at 15-19. On April 25, 2016, he received a copy of the agency’s decision

removing him from service, effective May 11, 2016. IAF, Tab 1 at 31, Tab 9

at 15. In the removal decision letter, the agency informed the appellant that he

could challenge his removal by filing a direct appeal with the Board or,

depending on the nature of his claims, appeal to the Board after filing either a

mixed-case equal employment opportunity (EEO) complaint with the agency or a

whistleblower reprisal complaint with the Office of Special Counsel. IAF, Tab 9

at 15-18. The removal decision did not inform the appellant of his right to file a

union grievance. Id.

¶3 On the day that the appellant received the removal decision , the local union

president was acting as his union representative. IAF, Tab 1 at 31, Tab 6 at 12.

He told the appellant that the union already had started the appeal process and

that he would be contacted by the union attorney assigned to represent him. IAF,

Tab 1 at 32. In addition, on May 3, 2016, the union president contacted the

agency about convening a Joint Resolution Panel (JRP) on the appellant’s

removal. IAF, Tab 10, Subtab 3 at 2. A JRP is part of the grievance process

under the applicable collective bargaining agreement (CBA). Id., Subtab 2 at 32.

The agency agreed to hold a JRP but advised the union president that “doing so

[would] prevent the employee from exercising [his] statutory appeal rights.” Id.,

Subtab 3 at 7-8. The union elected not to proceed with the JRP. Id., Subtab 1

at 9; IAF, Tab 10 at 127-28.

¶4 The appellant was never contacted by the union attorney regarding filing a

Board appeal. IAF, Tab 1 at 33. The union president also effectively ignored the

appellant’s numerous attempts to reach him until July 29, 2016, when the union

president first informed the appellant that the union in fact had not filed a Board

appeal. Id. at 76. The appellant filed his appeal with the Board on the same day.

IAF, Tab 1. The administrative judge issued an order informing the appellant that

his appeal was filed approximately 49 days late, based on a filing period

beginning on May 11, 2016, the effective date of his removal. IAF, Tab 2 at 2.

The administrative judge ordered the appellant to submit evidence and argument

proving by preponderant evidence that he either filed a timely appeal or that he

had good cause for his untimely filing. Id. at 3. Both parties submitted argument

and evidence on the timeliness issue. IAF, Tab 6 at 10-13, Tabs 8, 10.

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

initial decision in which he found that the Board has jurisdiction over the appeal

but that it was untimely filed without good cause because the appellant did not

show that he exercised due diligence or ordinary prudence under the particular

circumstances of the case. IAF, Tab 13, Initial Decision (ID) at 1, 4-10. 3

Specifically, he found that the appellant received written notice on April 25,

The administrative judge found no factual dispute on the timeliness issue that

warranted a hearing. ID at 10.

2016, that he would be removed effective May 11, 2016, and therefore his appeal

was due no later than 30 days after May 11, 2016, i.e ., by June 10, 2016. ID at 6.

¶6 The administrative judge also found that the union president never filed a

grievance on the appellant’s behalf, reasoning that the president never finalized

the request for a JRP. ID at 5. In any event, the administrative judge concluded

that the appellant was not bound by any election to file a grievance because the

agency’s decision letter failed to inform him of the preclusive effect of doing so.

Id. The administrative judge determined that the appellant filed his appeal on

July 29, 2016, which was 49 days late. Id. He further found that the appellant

did not exercise due diligence or ordinary prudence in filing his appeal, even

considering his unsuccessful attempts to contact his union representative , because

he allowed the deadline for filing his appeal to lapse without confirming that his

union representative had filed an appeal. ID at 8-9. Having found that the

appellant did not meet his burden of proving good cause for his filing delay, the

administrative judge dismissed the appeal as untimely filed. ID at 6-10.

¶7 The appellant has filed a petition for review disagreeing with the

administrative judge’s finding that the appellant failed to prove that he had good

cause for his filing delay. Petition for Review (PFR) File, Tab 1 at 19-27. He

argues, in the alternative, that he did not make a valid and binding election to file

a Board appeal. Id. at 19, 21-24. He also reiterates his affirmative defenses. Id.

at 7-8 & n.10, 10-19, 22-23. The agency has filed a response the appellant ’s

petition, and the appellant has filed a reply. PFR File, Tabs 3 -4.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the appellant elected to pursue a

Board appeal.

¶8 Below, the appellant disavowed any grievance filed by the union, stating

that he was unaware that the union ever requested a JRP and that he “wish[ed] to

pursue [his] appeal with the . . . Board.” IAF, Tab 10 at 128-29. According to

the appellant, he “consider[ed] [his] July 29, 2016 Notice of Appeal to the Board

to be [his] individual election to pursue [his] appellate rights before the Board

and not to proceed individually under the CBA.” Id. at 129.

¶9 The administrative judge found in the appellant’s favor, reasoning that the

union “never finalized or acted upon” the JRP request. ID at 5. Therefore, the

administrative judge found that the appellant was not precluded from pursuing his

subsequent Board appeal of his removal. Id.; see 5 U.S.C. § 7121(d) (providing

that an employee makes his election of forum in connection with an appealable

matter that he alleges resulted from discrimination when he timely files in that

forum); Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶¶ 19-20

(2007) (explaining that pursuant to 5 U.S.C. § 7121(d), an employee who alleges

that his removal was the result of prohibited discrimination may file a grievance

through negotiated grievance procedures, a direct appeal to the Board, or an EEO

complaint followed by a Board appeal). We agree. 4 IAF, Tab 10, Subtab 1

at 5-9, Subtab 3 at 7-8.

¶10 On review, the appellant asserts that he made a valid election to pursue a

grievance when his union representative requested a JRP. PFR File, Tab 1

at 9-10, 21-22. He claims, in conflict with his earlier denial of knowledge of the

JRP request, that the union president “assured [him] the union was grieving and

pursuing [the] removal action under the CBA.” Id. at 22. We find that the

appellant’s assertion on this issue is prohibited by judicial estoppel. 5

The administrative judge alternatively found that the grievance election was not

binding because the agency failed to provide proper notice of the grievance option. ID

at 5 (citing Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 15 (2013)

(observing that an election of forum for matters arising under 5 U.S.C. § 7121(d) and

(e) is not valid if an agency fails to provide proper notice of an employee’s avenues of

recourse)). Because we agree with the administrative judge’s finding that the union

president did not finalize his request for a JRP regarding the appellant’s removal, we do

not reach this alternative finding.

Further, the factual claims in the petition for review are made by the appellant’s

attorney and thus do not constitute evidence. Marcantel v. Department of Energy,

121 M.S.P.R. 330, ¶ 6 n.1 (2014) (observing that the statements of a party’s

representative in a pleading do not constitute evidence).

¶11 Under the doctrine of judicial estoppel, a party cannot prevail before the

Board on review on an argument that contradicts one he successfully presented

below to the administrative judge. Doe v. Department of Justice, 123 M.S.P.R.

90, ¶¶ 11-12 (2015). The decision of whether to apply judicial estoppel lies

within the Board’s discretion. Id., ¶ 11. Although the test for judicial estoppel is

“not reducible to any general formulation of principle,” three factors are generally

relevant: (1) a party’s later position must be clearly inconsistent with the same

party’s prior position; (2) in the earlier proceeding, the party was successful in

persuading the adjudicating body of his position, such that “judicial acceptance of

an inconsistent position in a later proceeding would create ‘the perception that

either the first or the second court was misled’”; and (3) “the party seeking to

assert an inconsistent position would derive an unfair advantage or impose an

unfair detriment on the opposing party if not estopped.” Id. (quoting New

Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (citations omitted)). The

purpose of the doctrine is to protect the integrity of the adjudicative process. Id.

The appellant’s position on review that he wishes to, and did, pursue a grievance

remedy is inconsistent with his prior position that he elected to pursue his Board

remedy. Further, the appellant was successful in persuading the administrative

judge that he did not file a grievance and thus that his Board appeal was not

precluded. ID at 5. Finally, the appellant seeks an unfair advantage against the

agency in pursuing his new argument; specifical ly, he wishes to challenge his

removal in the EEO process after already electing to do so before the Board. See

5 U.S.C. § 7121(d); PFR File, Tab 1 at 19, 21-23, 29. Therefore, we find that the

appellant is judicially estopped from taking the position that he elected to

challenge his removal in the grievance process.

¶12 The appellant also argues that his election to file an appeal was invalid

because the agency incorrectly informed him that he had 45 days to file an EEO

complaint. PFR File, Tab 1 at 17-24. He argues the period for filing an EEO

complaint is 30 days, citing 5 C.F.R. § 1201.154(a). Id. at 17-19. While a 30-day

time period is discussed in section 1201.154(a), it is the period for filing a Board

appeal in cases, such as this one, in which an appellant alleges prohibited

discrimination. 5 C.F.R. § 1201.154(a).

¶13 In contrast, the time period for filing an EEO complaint is governed by the

Equal Employment Opportunity Commission’s regulations. Those regulations

permit an employee to initiate contact with an EEO counselor at any time within

45 days of the removal decision. See 29 C.F.R. §§ 1614.105(a)(1) (providing that

an individual who wishes to file an EEO complaint must first “initiate contact

with a Counselor within 45 days of the . . . effective date of the [personnel]

action”), 1614.302(d) (providing that agencies are to process mixed-case

complaints consistent with other EEO matters, with exceptions not applicable

here). Thus, the agency’s notice was correct in informing the appellant that he

had 45 days to contact an EEO counselor. IAF, Tab 9 at 17.

The appellant failed to establish good cause for the untimely filing of his appeal.

¶14 The parties do not dispute the administrative judge’s finding that the appeal

was untimely filed, and we decline to disturb this finding on review. 6 PFR File,

Tab 1 at 6, 29, Tab 3 at 13; ID at 5-6. Instead, the appellant argues that the

administrative judge erred in declining to find good cause for his untimeliness.

ID at 6-10; PFR File, Tab 1 at 29. For the reasons explained below, we disagree.

¶15 To establish good cause for the untimely filing of an appeal, a pa rty must

show that he exercised due diligence or ordinary prudence under the particular

circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.

180, 184 (1980). To determine whether an appellant has shown good cause, the

On review, the appellant refers to a 47-day filing delay but does not provide any

evidence or argument that the filing delay was 47 days, rather than 49 days , as

determined by the administrative judge. PFR File, Tab 1 at 20. To the extent that the

appellant is arguing that the administrative judge did not properly calculate the length

of the filing delay, we disagree. ID at 5-6; IAF, Tab 1, Tab 9 at 15; see 5 C.F.R.

§§ 1201.23 (explaining how the Board calculates time periods for complying with any

deadline), 1201.154(a) (setting forth the applicable time limit for filing a mixed -case

appeal).

Board will consider the length of the delay, the reasonableness of his excuse and

his showing of due diligence, whether he is proceeding pro se, and whether he has

presented evidence of the existence of circumstances beyond his control that

affected his ability to comply with the time limits or of unavoidable casualty or

misfortune, which similarly shows a causal relationship to his inability to timely

file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63

(1995), aff’d per curiam, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

¶16 We discern no error in the administrative judge’s finding that the appeal

was untimely filed without good cause shown. Contrary to the appellant’s

arguments on review, the administrative judge correctly applied the Moorman

factors. PFR File, Tab 1 at 24-29; ID at 6-10. We agree with the administrative

judge’s finding that the 49-day filing delay is not minimal, the appellant was not

acting pro se, and he did not act reasonably and with due diligence in relying on

his union to file his appeal without being contacted by a union attorney or

verifying that the appeal was filed. ID at 7-10; see Robinson v. Office of

Personnel Management, 85 M.S.P.R. 589, ¶¶ 5-6 (2000) (finding that an

approximately 30-day delay in filing a petition was not minimal and that the

appellant’s asserted financial difficulties and attempts to secure counsel were not

good cause for his filing delay).

¶17 On review, the appellant again asks the Board to excuse his untimely appeal

because he relied on his union representative’s false representation that the union

would appeal his removal. IAF, Tab 1 at 25-26, 34; PFR File, Tab 1 at 25-26.

The administrative judge properly found that the appellant could not have

reasonably believed that a Board appeal was filed on his behalf because he was

never contacted by a union attorney as promised, and his union representative

ignored his inquiries. ID at 9.

¶18 The failure by an appellant’s attorney to timely file the appeal, in and of

itself, does not constitute good cause for the delay because an appellant is

responsible for the errors of his chosen representative. Miller v. Department of

Homeland Security, 110 M.S.P.R. 258, ¶ 11 (2008). A limited exception to this

rule exists when an appellant has proven that his diligent efforts to prosecute his

case were thwarted by his attorney’s deception and negligence. Id. The

exception is not applicable here, however, because the appellant did not

personally monitor the progress of his appeal but instead left the matter entirely

in the hands of his union representative. Id., ¶¶ 12-13 (declining to find good

cause for an appellant’s untimely filed petition for review; although the

appellant’s attorney claimed to have timely filed the petition, he never provided

the appellant with a copy despite the appellant’s many requests, and the appellant

did not make any inquiries at the Board regarding the status of his appeal until the

deadline had passed); IAF, Tab 1 at 32-34. He has not shown that he personally

took any action to confirm that an appeal had been filed on his behalf during the

46-day period between his receipt of the removal decision and the deadline for

filing a Board appeal. ID at 9; IAF, Tab 1 at 31-34; see Miller, 110 M.S.P.R.

258, ¶ 13.

¶19 We further find that the appellant’s arguments on review present no

evidence of circumstances beyond his control that affected his ability to comply

with the time limits or of unavoidable casualty or misfortune , which similarly

showed a causal relationship to his inability to timely file his appeal with the

Board. See Herring v. Merit Systems Protection Board, 778 F.3d 1011, 1013

(Fed. Cir. 2015) (concluding that the Board abused its discretion in finding an

appeal untimely when there was a 10-day delay in filing, but the appellant

demonstrated significant circumstances beyond her control to timely file, such as

her psychological conditions, delays in the receipt of her case-related documents

attributable to a clerical error made by her attorney’s office, and her attorney’s

“misleading and deceptive” assurances a few days before the deadline that the

appeal would be filed, all of which undoubtedly affected her abi lity to monitor

her attorney’s compliance with the filing deadline); Moorman, 68 M.S.P.R.

at 62-63. The appellant alleges that the union president “abruptly” ended the

April 25, 2016 meeting at which the appellant received the removal decision, the

removal decision did not include specific notice regarding the JRP process , and

the agency and union had unlawfully declined to grieve removals, including the

appellant’s. PFR File, Tab 1 at 24-27. These arguments fail. The appellant did

not raise them below. E.g., IAF, Tab 10; 7 see Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980) (observing that the Board generally will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence). Further, he does not explain on review how

the union president’s conduct at the removal meeting, the alleged deficiencies in

the removal decision, or the failure to grieve the removal contributed to his delay.

PFR File, Tab 1 at 24-27.

¶20 Although the appellant argues that the administrative judge erred in failing

to consider whether the agency was unduly prejudiced by the delay, we disagree.

Id. at 27-29. Upon an appellant’s showing of good cause for the untimely filing

of his appeal, waiver of the filing deadline is appropriate absent a showing of

substantial prejudice caused to the agency by the delay in filing. Boyd v.

Department of Veterans Affairs, 111 M.S.P.R. 116, ¶ 12 (2009). Because the

appellant did not show good cause, the administrative judge properly ended the

inquiry without determining whether the agency would be prejudiced by the

delay. ID at 10.

The appellant’s remaining arguments on review do not show any error in the

administrative judge’s decision to dismiss this appeal as untimely filed without

good cause.

¶21 The appellant makes additional arguments on review that are not relevant to

the timeliness of his appeal, which is the dispositive issue before the Board on

Although the appellant alleged below that the agency and the union had a history of

not submitting removals to the JRP, he did so to argue that the CBA did not comply

with the statutory requirements for grievance procedures at 5 U.S.C. § 7121. IAF,

Tab 10 at 10-13.

review. PFR File, Tab 1 at 4-20. Because we find that the administrative judge

properly dismissed this appeal as untimely filed, we do not address the

appellant’s remaining arguments regarding the union grievance process, the

deficiencies in the agency’s removal notice that do not relate to the filing of his

Board appeal, and the merits of his allegations of prohibited personnel practices,

harmful procedural error, and due process violations . Id.

¶22 Accordingly, we affirm the administrative judge’s finding that the appellant

untimely filed his appeal without good cause. ID at 4-10.

NOTICE OF APPEAL RIGHTS 8

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 a ppeal 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 thei r

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.

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.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 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

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in s ection

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. 9 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

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.