Marcus James v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARCUS AURELIUS JAMES, DOCKET NUMBER

Appellant, AT-3443-21-0251-I-1

v.

DEPARTMENT OF VETERANS DATE: April 8, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marcus Aurelius James , Miramar, Florida, pro se.

Caroline E. Johnson , Esquire, St. Petersburg, Florida, for the agency.

Kristin Ann Langwell , Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed for lack of jurisdiction his appeal alleging prohibited personnel

practices surrounding an alleged hostile work environment, a higher-level detail

assignment, and a non-selection for a permanent appointment. Generally, we

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

grant petitions such as this one only in the following 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 petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review. Except as

expressly MODIFIED to address potential additional bases of jurisdiction raised

by the appellant’s pleadings below and on review, we AFFIRM the initial

decision.

BACKGROUND

The appellant is a veteran with a service-connected disability. Initial

Appeal File (IAF), Tab 7 at 81, 86. At the time he filed the instant appeal, he was

employed by the agency as an Assistant Human Resources Officer, GS -13, in the

Miami Veterans Affairs (VA) Healthcare System. IAF, Tab 1 at 1, 5, Tab 6 at 51,

Tab 7 at 73. From approximately October 2019 until February 2021, he was

detailed to a GS-14 Human Resources Officer (HRO) position at the same

location. IAF, Tab 1 at 5, Tab 7 at 73; Petition for Review (PFR) File, Tab 1 at 4.

According to the appellant, he was entitled to, but did not receive, higher -level

compensation during his detail. IAF, Tab 6 at 7-8.

While he was detailed to the HRO position, in November 2019, the agency

posted a vacancy announcement for the permanent GS-14 HRO position. IAF,

Tab 7 at 27. The appellant competed for the permanent position but was not

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selected. Id. at 27, 65-72, 90. The agency advised him of his non-selection on

February 20, 2020. Id. at 90. The appellant filed the instant appeal of the

agency’s decision not to promote him to the HRO position and alleged that the

agency engaged in several prohibited personnel practices while he performed the

detail. IAF, Tab 1 at 5.

The appellant argued below that the interview process for the HRO position

was not conducted fairly because one of three interviewers, specifically the

then-acting Associate Director (AAD) for the Miami VA Healthcare System, was

not qualified to sit on the interview panel. IAF, Tab 6 at 6-7, 46. He reasoned

that she was serving in an acting role, had been subjecting him to a hostile work

environment based on race and perhaps other unspecified factors, and improperly

scored him 9 out of 30 possible points, which deviated from the two other

interviewers, who scored him at 15 and 18 points, respectively. Id. at 4-7, 21-24.

He also suggested that the AAD’s treatment of him, and scoring of his

application, may have resulted from disclosures he made to her and others

regarding her behavior. Id. at 4-7. The appellant alleged that he did not receive

supplemental compensation for the period during which he was detailed to the

HRO position, even though he continued to perform his primary duties. IAF,

Tab 1 at 5, Tab 6 at 7.

The agency moved to dismiss the appeal for lack of jurisdiction. IAF,

Tab 7 at 10. Its motion explained that the Board generally lacks jurisdiction over

non-selection claims. Id. at 7. It identified exceptions for claims of

whistleblower reprisal, as well as those arising under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (codified as amended

at 38 U.S.C. §§ 4301-4335) (USERRA) and the Veterans Employment

Opportunities Act of 1998 (VEOA). Id. at 7-8. It pointed to what the agency

viewed as deficiencies in the appellant’s allegations regarding these and other

potential claims. Id. at 8-9. The administrative judge then issued an Order to

Show Cause, which also explained to the appellant that the Board generally lacks

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jurisdiction over non-selection decisions and identified exceptions for claims of

whistleblower reprisal, as well as USERRA and VEOA claims. IAF, Tab 8

at 2-3. The administrative judge stated in her order that the Board lacks

jurisdiction over the appellant’s claim that he was entitled to higher-level pay

while detailed to the HRO position. Id. at 2. The appellant did not respond to

either the agency’s filing or the administrative judge’s order.

The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction without holding the appellant’s requested hearing. IAF,

Tab 1 at 2, Tab 9, Initial Decision (ID) at 1-3. She explained that, although the

Board has jurisdiction to review an “adverse action” under chapter 75, it

generally lacks jurisdiction to review a non-selection claim. ID at 3. She further

found that, because the appellant failed to nonfrivolously allege Board

jurisdiction over an otherwise appealable action, the Board did not have

jurisdiction to review any prohibited personnel practice claims or other

affirmative defenses raised by the appellant. Id.

The appellant has filed a petition for review, in which he reiterates his

hostile work environment claim and argues that his appeal did not concern his

non-selection, but rather what he asserts was the excessive length of his detail to

the HRO position and his hostile work environment claim. PFR File, Tab 1

at 4-5; IAF, Tab 1 at 5. He includes for the first time on appeal what appear to be

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his responses to an agency discovery request. PFR File, Tab 1 at 8-33. 2 The

agency responded to the petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks

jurisdiction over an employee’s non-selection for a position. Becker v.

Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). Similarly, a

reassignment or detail without a reduction in pay or grade is not an adverse action

appealable under chapter 75. Dixon v. U.S. Postal Service, 64 M.S.P.R. 445,

450 n.3 (1994), aff’d sub nom. Scorcia v. U.S. Postal Service , 77 F.3d 503 (Fed.

Cir. 1996) (Table). Nor does the Board have independent jurisdiction over any

claim of discrimination or other prohibited personnel practice the appellant may

be attempting to raise in connection with his detail. Snow v. Department of the

Air Force, 39 M.S.P.R. 582, 584 (1989).

Despite the general lack of jurisdiction, however, an employee may be able

to appeal an alleged hostile work environment or a detail under VEOA or

USERRA, or through an individual right of action (IRA) appeal under

whistleblower protection statutes. See Becker, 107 M.S.P.R. 327, ¶ 5

(recognizing that, despite the general lack of Board jurisdiction over a

non-promotion, an appellant may appeal a non-promotion under VEOA or

2

Discovery requests and responses thereto generally are not to be filed in the first

instance with the Board unless, as relevant here, they are submitted as part of the

substantive evidence to be considered in the appeal. Boston v. Department of the Army,

122 M.S.P.R. 577, ¶ 12 (2015); 5 C.F.R. § 1201.71. Therefore, we have reviewed the

appellant’s responses to the agency’s discovery requests to determine whether they

contain any information impacting the Board’s jurisdiction. See Pirkkala v. Department

of Justice, 123 M.S.P.R. 288, ¶ 5 (2016) (considering the new evidence submitted by

the appellant on review because it concerned the issue of Board jurisdiction, a matter

that may be raised at any time during the Board proceedings). The appellant also

includes numerous documents which are identical to those he filed below. PFR File,

Tab 1 at 36-65; IAF, Tab 6 at 26-55. We have cited to those documents, when

appropriate, at their location in the initial appeal file.

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USERRA or through an IRA appeal); see also, e.g., Skarada v. Department of

Veterans Affairs, 2022 MSPB 17, ¶¶ 13-16 (acknowledging that an alleged hostile

work environment might be actionable in an IRA appeal); Petersen v. Department

of the Interior, 71 M.S.P.R. 227, 235-39 (1996) (concluding that allegations of

harassment may be actionable under USERRA); White v. Department of the Air

Force, 63 M.S.P.R. 90, 94 (1994) (recognizing that a detail may be the subject of

an IRA appeal). Therefore, although not directly addressed in the initial decision,

we have considered the appellant’s claim, re-raised on review, that the AAD

subjected him to a hostile work environment and that the agency’s handling of his

detail was improper. See Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7

(2010) (explaining that the Board would resolve jurisdictional issues that the

administrative judge failed to address on petition for review because the issue of

the Board’s jurisdiction is always before the Board and can be raised by the

parties or sua sponte at any time).

We have also addressed the appellant’s non-selection claim. Normally, the

Board considers those issues raised by the parties on review. Special Counsel v.

Coffman, 124 M.S.P.R. 130, ¶ 18 n.6 (2017); 5 C.F.R. § 1201.115. However, the

Board reserves the authority to consider any issue in an appeal before it. 5 C.F.R.

§ 1201.115(e). Here, the appellant has asserted on review that he never intended

to raise his non-selection. PFR File, Tab 1 at 4-5. This statement is belied by his

submissions below. IAF, Tab 1 at 5, Tab 6 at 6, 19. In any event, we have

exercised our authority to consider this claim in order to supplement the

administrative judge’s reasoning as to why the Board lacks jurisdiction over this

claim, as discussed below.

We modify the initial decision to find that the appellant has failed to establish

jurisdiction over his claims as either an IRA or a VEOA appeal.

As indicated above, the appellant suggested during the proceedings before

the administrative judge that his non-selection was in reprisal for disclosures he

made to the AAD and others regarding her behavior. IAF, Tab 6 at 4-7. He also

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raised claims relating to his detail as HRO and an alleged hostile work

environment. IAF, Tab 1 at 5, Tab 6 at 4-7. He appears to re-raise these claims

on review. PFR File, Tab 1 at 5-6, 16-19, 24. The record contains evidence that

the appellant is preference eligible under 5 U.S.C. § 2108; therefore, we are also

considering any potential VEOA claim, though not addressed by the

administrative judge. IAF, Tab 7 at 86-87.

To establish Board jurisdiction over a non-selection appeal brought under

the VEOA, an appellant must, in pertinent part, make nonfrivolous allegations

that in making its selection decision, the agency violated his rights under a statute

or regulation relating to veterans’ preference. Alegre v. Department of the Navy,

118 M.S.P.R. 424, ¶¶ 12-13, 15 (2012). The Board has jurisdiction over an IRA

appeal if, as relevant here, the appellant exhausted his administrative remedies

before the Office of Special Counsel (OSC). Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Although the administrative judge did

not provide notice of these jurisdictional requirements, the agency’s motion to

dismiss did so. IAF, Tab 7 at 8, Tab 8. 3

The appellant did not allege below, and has not claimed on review, any

violations of veterans’ preference regulations or statutes in connection with his

non-selection. Indeed, the appellant did not even assert he was preference

eligible in his initial appeal. IAF, Tab 1 at 1. Further, as indicated above, he

avers on review that he is not contesting his non-selection. PFR File, Tab 1

at 4-5. Therefore, we find the Board lacks VEOA jurisdiction over the appeal.

3

An appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d

641, 643-44 (Fed. Cir. 1985). However, an administrative judge’s failure to provide an

appellant with proper Burgess notice can be cured if the agency’s pleadings contain the

notice that was otherwise lacking. Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9

(2009). Here, the administrative judge’s Acknowledgment Order did not provide the

appellant with proper Burgess notice. However, the agency’s motion to dismiss the

appeal cured this error by identifying the possible claims related to a non-selection over

which the Board may have jurisdiction, as well as what the appellant needed to allege to

establish those claims. IAF, Tab 7 at 7-10.

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The appellant also failed to establish that he exhausted his OSC remedy as

to any potential IRA appeal. On his initial appeal form, he denied having filed a

whistleblowing complaint with OSC. IAF, Tab 1 at 4. The record briefly

indicates that the appellant spoke with OSC and that an OSC investigator was

apparently working on an initial determination of a complaint the appellant filed,

but there is no evidence or allegation identifying the substance of that complaint,

nor does the record show whether OSC terminated its investigation or that

120 calendar days passed since he first sought corrective action. IAF, Tab 7

at 16-17, PFR File, Tab 1 at 19. In fact, it appears the appellant likely based his

OSC complaint on claims of race and sex discrimination. IAF, Tab 7 at 16-18.

Thus, there is no evidence that the appellant exhausted his administrative

remedies as to claims of whistleblower reprisal. Because the appellant failed to

meet at least one of the jurisdictional prerequisites for an IRA or a VEOA appeal,

we find it unnecessary to determine if he met the other jurisdictional requirements

for these types of appeals.

The appellant has not alleged that the agency discriminated against him based on

uniformed service in violation of USERRA.

We have considered whether the appellant is raising a discrimination claim

under USERRA because he is a veteran and has alleged he was detailed for too

long, subjected to a hostile work environment, and not selected for a position.

IAF, Tab 1 at 5, 7; PFR File, Tab 1 at 4-5; see Yates v. Merit Systems Protection

Board, 145 F.3d 1480, 1485 (Fed. Cir. 1998) (finding that an appellant need not

specifically mention USERRA to meet the Board’s USERRA jurisdictional

requirements; it is sufficient to allege facts that invoke jurisdiction).

To establish jurisdiction over a USERRA discrimination claim under

38 U.S.C. § 4311(a), an appellant must nonfrivolously allege that: (1) he

performed duty or has an obligation to perform duty in a uniformed service of the

United States; (2) the agency denied him initial employment, reemployment,

retention, promotion, or any benefit of employment; and (3) the performance of

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duty or obligation to perform duty in the uniformed service was a substantial or

motivating factor in the denial. Hau v. Department of Homeland Security,

123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection

Board, 878 F.3d 1320, 1325-26 (Fed. Cir. 2017). The agency noted in its motion

to dismiss that the appellant had not alleged his non-selection was motivated by

his uniformed service. IAF, Tab 7 at 7-8.

Because the administrative judge did not make findings as to whether the

appellant met his burden to raise nonfrivolous allegations of jurisdiction under

USERRA, we modify the initial decision to do so here. We find the appellant’s

allegations lacking. Although the appellant states on review that his uniformed

service is “well documented,” he has not claimed that the AAD, or any other

agency employee, expressed hostility toward his military service or treated him

differently compared to other employees based on that service. PFR File, Tab 1

at 5. Under these circumstances, the appellant has failed to nonfrivolously allege

discrimination based on uniformed service. We therefore find that there is no

basis for Board jurisdiction under USERRA.

The appellant has failed to nonfrivolously allege that the agency violated the

basic requirements for employment practices.

The Board has jurisdiction over an employment practices appeal under

5 C.F.R. § 300.104(a) when the following conditions are met: (1) the appeal

concerns an employment practice that the Office of Personnel Management

(OPM) is involved in administering; and (2) the appellant makes a nonfrivolous

allegation that the employment practice violated one of the “basic requirements”

for employment practices set forth in 5 C.F.R. § 300.103. Sauser v. Department

of Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010). Employment practices can

include practices affecting ranking and selection of applicants for promotion in

the competitive service. Meeker v. Merit Systems Protection Board, 319 F.3d

1368, 1372 (Fed. Cir. 2003) (citing 5 C.F.R. § 301.101). An agency’s

misapplication of a valid OPM requirement may constitute an employment

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practice, but an individual agency action or decision does not. Sauser,

113 M.S.P.R. 403, ¶ 7 (citing, inter alia, Prewitt v. Merit Systems Protection

Board, 133 F.3d 885, 887 (Fed. Cir. 1998) (affirming the Board’s dismissal of a

non-selection appeal for lack of Board jurisdiction because, as relevant here, the

petitioner failed to identify any OPM regulation the agency implemented that

resulted in the agency misidentifying the races of the applicants, as alleged).

In its vacancy announcement, the agency identified the HRO position as

being in the competitive service. IAF, Tab 7 at 27. Further, the appellant alleged

below that the AAD improperly scored his application. IAF, Tab 6 at 6-7. He

pointed to scoring charts completed by the three interviewers for the vacancy,

asserting that the scores from the AAD were inconsistent with those from the

other interviewers and that she improperly rated him as “0” on an element

although the score range was identified on the chart as “1-5.” Id. at 6-7, 21-24.

The administrative judge did not address any potential employment

practices claim below. ID. The appellant does not re-raise his non-selection on

review, although he does reference it in the discovery responses attached to the

petition for review. PFR File, Tab 1 at 22-23. In any event, to ensure the initial

decision is complete, we find the appellant failed to establish jurisdiction over an

employment practice because his allegations relate solely to an individual agency

action. He does not identify any OPM requirement or practice that concerned the

score of his application. Id. Further, nothing in the record indicates that OPM

was at all involved in administering or reviewing the qualification requirements

that the agency considered in evaluating applicants for the HRO position. 4 In the

absence of an otherwise appealable action, the Board lacks jurisdiction over the

appellant’s prohibited personnel practice claims, such as his race and sex

4

As previously discussed, an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue. Burgess, 758 F.2d at 643-44;

Harris, 112 M.S.P.R. 186, ¶ 9. The administrative judge failed to provide proper

jurisdictional notice concerning the appellant’s employment practices claim, but the

agency’s motion to dismiss cured this error by identifying what he must allege. IAF,

Tab 7 at 8-9.

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discrimination claims. IAF, Tab 7 at 16-18; see Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).

Accordingly, we affirm the administrative judge’s initial decision as modified

above.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

5

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

12

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

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

13

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

14

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

6

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

15

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

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

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

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

Board neither endorses the services provided by any attorney nor 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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.