# Marcus James v. Department of Veterans Affairs

> Merit Systems Protection Board · April 8, 2024

URL: https://www.frixlaw.com/law-library/cases/9958503

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 8, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9958503

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
3

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
4

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
5

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.
6

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
7

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.
8

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
9

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
10

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.
11

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9958503. Public record. Not legal advice.