Leonard English v. Small Business Administration ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ENGLISH, JR., DOCKET NUMBER
Appellant, DE-1221-16-0484-W-1
v.
SMALL BUSINESS DATE: February 3, 2023
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard English, Jr., Aurora, Colorado, pro se.
Ashley Obando, Esquire, James D. Cantlon, Esquire, and Sherrie
Abramowitz, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant, a Surety Bond Guarantee Specialist, filed this IRA appeal
alleging that, in reprisal for his filing of prior Board appeals and his protected
disclosures, the agency (1) issued him a level 2 (Below Expectations)
performance rating for fiscal year 2015, (2) charged him with absence without
leave (AWOL) from April 22 through May 17, 2016, and (3) failed to include him
in his supervisor’s “line of succession” (LOS) on March 11, 2016. Initial Appeal
File (IAF), Tab 1 at 2, 5-8, Tab 18.
¶3 After finding Board jurisdiction over the appeal, and based on the written
record because the appellant did not request a hearing, the administrative judge
denied the appellant’s request for corrective action. IAF, Tab 33, Initial Decision
(ID) at 2, 25. The administrative judge found that the three agency actions
described above were personnel actions under 5 U.S.C. § 2302(a)(2)(A) and that
the appellant established that his Board appeals, which raised allegations of
whistleblower reprisal, were protected activity under 5 U.S.C. § 2302(b)(9)(A)(i)
3
and a contributing factor in the personnel actions. ID at 6-8. The administrative
judge also found that the appellant made three protected disclosures which were
contributing factors in the personnel actions but that the agency proved by clear
and convincing evidence that it would have taken the same actions, even absent
the prior Board appeals and disclosures. ID at 8-18. In this regard, the
administrative judge found that the agency’s evidence in support of its actions
was strong, any motive to retaliate was slight, modest, or not particularly strong,
and there was no evidence regarding whether the agency took similar actions
against similarly situated employees who were not whistleblowers. ID at 19-25.
ANALYSIS
¶4 The appellant asserts that the agency’s reasons for placing him on AWOL
were not strong because it was reasonable for him to refuse to meet alone with his
supervisor, who had accused him of stalking her, and instead leave the workplace.
Petition for Review (PFR) File, Tab 3 at 5. He also contends that the reasons for
placing him on AWOL were not strong because such placement violated the
Master Labor Agreement (MLA), which he claims provided that the agency’s
senior management, and not his supervisors, should have made the determination
as to whether to place him on AWOL. Id. at 6-7, 11-12, 19-20.
¶5 The administrative judge addressed the appellant’s placement on AWOL in
great detail in English v. Small Business Administration, MSPB Docket
No. DE-0752-16-0485-I-1, Initial Decision at 16-22 (Mar. 7, 2017) (0485 ID),
and incorporated those findings into the initial decision in this case. ID at 24.
The administrative judge found that the appellant never obtained authorization for
the absences in question and that the provisions the appellant cited regarding the
MLA did not apply because he did not reasonably believe that the duties assigned
to him by his supervisor could possibly endanger his health or safety. 0485 ID
at 18-22. We agree with the administrative judge that the agency’s reasons for
4
placing the appellant on AWOL are strong and that the agency did not violate the
MLA. Thus, the appellant has shown no error in this regard.
¶6 The appellant also asserts that the administrative judge should have
included as an issue in this case his claim that the agency harassed him by issuing
letters excluding him from his supervisor’s LOS. PFR File, Tab 3 at 7. As set
forth above, the administrative judge addressed the appellant’s claim that the
agency did not include him in the LOS on March 11, 2016, and addressed similar
claims involving earlier dates in English v. Small Business Administration, MSPB
Docket Nos. DE-1221-16-0135-W-1, DE-1221-16-0136-W-1, Initial Decision
at 21-24 (June 6, 2016) (0135 ID), in finding, based in part on the demeanor of
the appellant’s supervisor, that the agency’s evidence in support of those
decisions was “compelling.” 0135 ID at 22-24. The Board defers to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of the witnesses testifying at a hearing
and overturns such determinations only when it has sufficiently sound reasons for
doing so. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). 2 The administrative judge identified the personnel actions that would be
considered in this case, which did not include harassment, IAF, Tab 18 at 1-3, and
found that any such allegations made in the appellant’s closing brief were
untimely raised, ID at 6. The appellant has not shown that the administrative
judge erred in not considering this claim. See 5 C.F.R. § 1201.59(c).
¶7 The appellant further generally asserts that the administrative judge did not
apply the guidelines set forth in Whitmore v. Department of Labor, 680 F.3d 13532
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
5
(Fed. Cir. 2012), for assessing whether an agency has met its burden of proving
by clear and convincing evidence that it would have taken the same action in the
absence of the protected activity. In this regard, the appellant claims that the
administrative judge did not properly account for the absence of evidence that the
agency took similar actions against employees who were not whistleblowers, i.e.,
the third factor set forth in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999), and incorrectly found that his supervisor, who placed him
on AWOL, had no knowledge of his April 24, 2016 letter to senior management
officials explaining his decision to “self remove” himself from the workplace
based on alleged safety concerns and disclosing time and attendance abuse
because she knew of the fact of the disclosure, even if she had not seen or read its
contents. PFR File, Tab 3 at 5, 10-11, 17, 28-29, 31-32; ID at 17. He also
contends that his supervisor knew of that disclosure because the senior managers
who received it likely “talk[ed] to front line managers.” PFR File, Tab 3 at 6-8.
¶8 In Whitmore, 680 F.3d at 1368, the U.S. Court of Appeals for the Federal
Circuit held that, whether evidence is sufficiently clear and convincing to carry
an agency’s burden of proof cannot be evaluated by looking only at the evidence
that supports the conclusion reached; rather, evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate, considering
all the pertinent evidence in the record and despite the evidence that fairly
detracts from that conclusion. On review, the appellant’s allegations regarding
Whitmore appear to be addressed to personnel actions, such as his letter of
reprimand and 5-day suspension, that are not relevant to this appeal. PFR File,
Tab 3 at 10-11. He has not otherwise shown that considerable countervailing
evidence was manifestly ignored, overlooked, or excluded by the administrative
judge. See Whitmore, 680 F.3d at 1368, 1376.
¶9 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of
whistleblowing, the Board generally will consider the following factors (Carr
6
factors): (1) the strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB
6, ¶ 11; see Carr, 185 F.3d at 1323. The appellant contends that the
administrative judge incorrectly applied Whitmore in analyzing the third Carr
factor, but we disagree. Although the court in Whitmore held that a failure to
come forward with all reasonably pertinent evidence relating to Carr factor three,
to the extent such evidence exists, “may be at the agency’s peril” and that an
absence of such evidence may well cause the agency to fail to prove its case
overall, it also held that agencies do not have an affirmative burden to produce
evidence as to each and every one of the three Carr factors and that “the absence
of any evidence relating to Carr factor three can effectively remove that factor
from the analysis.” Whitmore, 680 F.3d at 1374.
¶10 Here, the administrative judge found no evidence on the issue of whether
the agency had taken similar actions against similarly situated employees who
were not whistleblowers, and found the factor neutral. ID at 23-25; 0485 ID
at 31, 49-50; 0135 ID at 22-24. In fact, the acting officials averred that none of
the other employees under their supervision had been AWOL or had attempted to
perform a “self-removal” like the appellant, or had a Level 2, Below Expectations
rating for fiscal year 2015. IAF, Tab 25 at 14, 42, 45. Thus, there is some
evidence presented by the agency suggesting that there were no similarly situated
employees who were not whistleblowers and who were treated more favorably
than the appellant and that evidence relating to the third Carr factor did not,
therefore, exist. See Carr, 185 F.3d at 1326 (addressing the conduct and
circumstances surrounding the conduct in determining whether a comparison
employee is similar to the disciplined employee). In sum, we find that the
appellant has shown no error in the administrative judge’s analysis on this issue.
7
Cf. Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 (2015)
(finding that a lack of evidence concerning similar employees who were not
whistleblowers did not undermine the agency’s clear and convincing evidence
when the evidence in support of the action was strong and the motive to retaliate
was very weak), aff’d, 652 F. App’x 971 (Fed. Cir. 2016).
¶11 The appellant’s arguments regarding the actual or imputed knowledge by
his supervisor of the April 24, 2016 disclosure is similarly without merit. The
administrative judge addressed this disclosure in great detail in this case and in
English v. Small Business Administration, MSPB Docket No. DE-0752-16-0485-
I-1. ID at 9-10, 17-18; 0485 ID at 16, 34-37. The administrative judge found that
this disclosure was made after the performance rating and LOS decisions were
made and thus could not have been a contributing factor in those actions. ID at 9,
17-18; see Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27
(2011). Regarding the appellant’s April 22 through May 17, 2016 placement on
AWOL, the administrative judge found that the appellant’s placement on AWOL
already was underway before the April 24, 2016 disclosure and, to the extent that
the decision to keep him on AWOL followed his April 24, 2016 letter, his
supervisor was not aware that the appellant had made a disclosure of time and
attendance abuse in the lengthy 11-page, “seemingly rambling” letter, but merely
knew of the letter’s existence because she was asked about the appellant’s
departure and absence from the office based on his claim that his workplace wa s
unsafe. ID at 9-10, 17-18.
¶12 The appellant has shown no error in the administrative judge’s findings
regarding the agency’s knowledge of the April 24, 2016 disclosure. An employee
may demonstrate that a disclosure was a contributing factor in a personn el action
through circumstantial evidence, such as evidence that the official taking the
personnel action “knew of the disclosure” and the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. 5 U.S.C. § 1221(e).
8
Thus, to prove that a disclosure was a contributing factor in a personnel action, an
appellant only need demonstrate that the fact of, or the content of, the protected
disclosure was one of the factors that tended to affect the personnel action in any
way. See Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 18 (2015).
Here, the administrative judge correctly concluded that, although the appellant’s
supervisor may have been aware of the fact that the appellant had submitted a
letter to senior management explaining why he decided to remove himself from
the workplace, the appellant did not show by preponderant evidence that the
supervisor also was aware that he had made a disclosure of time and attendance
abuse within the lengthy April 24, 2016 letter. ID at 9-10, 17-18; cf. Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 26 (2015) (finding that knowledge
that the appellant had filed an Inspector General complaint constituted awareness
of the fact of a disclosure); Rubendall v. Department of Health & Human
Services, 101 M.S.P.R. 599, ¶ 13 (2006) (finding the knowledge element of the
test was met based on the fact of the disclosure when the deciding official
acknowledged receipt of the documents comprising the disclosure, as well as the
general nature of the disclosure being made), superseded on other grounds by
statute, Whistleblower Protection Enhancement Act of 2012, Pub. L.
No. 112-199, 126 Stat. 1465. Although the appellant speculates that senior
managers who received the April 24, 2016 letter told his supervisor about any
disclosures included therein, he has not submitted evidence in support of that
assertion. See Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 15 (2013);
Jones v. Department of the Treasury, 99 M.S.P.R. 479, ¶ 8 (2005). 3
3
Even assuming that the appellant’s supervisor was aware of the fact that the appellant
had submitted a May 24, 2015 prohibited personnel practice complaint with the chief
human capital officer, PFR File, Tab 3 at 10; IAF, Tab 27 at 62-80, the supervisor
averred that she had not seen the complaint, IAF, Tab 25 at 15, 330 (referencing
item 5i), and we would nevertheless find, for the same reasons already set forth by the
administrative judge, that the agency proved by clear and convincing evidence that it
would have taken the same actions absent the disclosure, ID at 19-25.
9
¶13 The appellant further asserts that the administrative judge erred when he
found that most of his disclosures, which he claims evidenced violations of law
and abuses of authority, were not protected. PFR File, Tab 3 at 6. Aside from his
disagreement with the administrative judge’s explained findings, the appellant
does not identify the specific disclosures in question that he is challenging, nor
does he support his general allegation that his disclosures were protected with any
case law. See 5 C.F.R. § 1201.114(b) (requiring a petition for review to be
supported by references to applicable laws or regulations an d specific references
to the record). Under these circumstances, we find that the appellant has shown
no error in the administrative judge’s determination that his disclosures were not
protected because they were either unspecific allegations of workplace safety
issues or otherwise vague allegations that his supervisor was, for example, trying
to exert control over him or “volatile.” ID at 12-13, 15, 17. Moreover, in many
of the situations in which the administrative judge found that the appellant’s
disclosures were not protected, he further found that, even assuming that they
were protected, the appellant did not prove that they were a contributing factor in
the challenged personnel actions. ID at 12-14, 16-17.
¶14 Further, the appellant contends that, although the administrative judge
found that his prior Board appeals did not provide a strong motive to retaliate
because the appellant did not win those appeals, most of those initial decisions
are pending review by the full Board. PFR File, Tab 3 at 10. The administrative
judge found that the appellant’s prior Board appeals were a contributing factor in
the personnel actions based on the knowledge-timing test. ID at 6-8.
Nevertheless, he found that, although the acting officials had a motive to retaliate
against the appellant based on his Board appeals, they did not have a particularly
strong motive to do so because there had been no finding by the administrative
judge, the Board, or the Federal Circuit that the acting officials committed any
wrongdoing. ID at 22. He concluded that, given the strong reasons for the
actions and only a modest motive to retaliate, along with the absence of evidence
10
as to whether the agency took similar actions against similarly situated employees
who were not whistleblowers, the agency met its burden of proving by clear and
convincing evidence that it would have taken the same actions absen t the Board
appeals. ID at 23-25; 0485 ID at 29-32; 0135 ID at 22-24.
¶15 The agency officials who were involved in the personnel actions submitted
declarations made under penalty of perjury indicating that the Board appeals had
no bearing on their decisions and that they would have taken the same actions in
the absence of the Board appeals. IAF, Tab 25 at 14, 45. A declaration made
under penalty of perjury is entitled to considerable weight unless rebutted.
Vercelli v. U.S. Postal Service, 70 M.S.P.R. 322, 327 (1996); see Jones v.
Department of the Interior, 97 M.S.P.R. 282, ¶ 11 (2004) (finding sworn
statements made under penalty of perjury to be more persuasive than the unsworn
statements and wholly unsubstantiated arguments submit ted by the appellant).
While we agree with the appellant that his Board appeals are still pending before
the full Board, the administrative judge correctly found that, when the personnel
actions were taken, no finding had been made of any wrongdoing by the acting
officials. Cf. Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 69 (2001)
(holding that the proper perspective when weighing the gravity of the misconduct
against the motive to retaliate is the perspective as it appeared to the deciding
official when he took the action). Thus, we find no error in the administrative
judge’s determination that, although the Board appeals constituted a modest
motive to retaliate, they were outweighed under the circumstances of this appeal
by the strength of the evidence in support of the actions and that there was no
evidence that the agency took similar actions against employees who were not
whistleblowers but who were otherwise similarly situated. See Whitmore,
680 F.3d at 1374 (holding that an agency does not have an affirmative burden to
produce evidence as to each and every one of the three Carr factors).
¶16 Finally, the appellant submits with his petition for review his fiscal year
2015 performance appraisal. PFR File, Tab 3 at 33-46. This document is already
11
included in the record. IAF, Tab 10 at 179-92. A petition for review should not
include documents that were part of the record below, as the entire administrative
record is available to the Board. 5 C.F.R. § 1201.114(b).
¶17 Accordingly, we deny the appellant’s petition for review. 4
NOTICE OF APPEAL RIGHTS 5
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
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
13
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 com mercial 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 at torney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.