UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RAYMOND SLAYTON,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

SF-0752-17-0370-I-1

DATE: February 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jennifer Duke Isaacs, Esquire, Atlanta, Georgia, for the appellant.

Julie Rook Gold, Esquire, and Kevin L. Owen, Esquire, Silver Spring, 

Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

reversed the appellant’s removal. For the reasons discussed below, we GRANT 

the agency’s petition for review, REVERSE the administrative judge’s finding 

that the agency failed to establish a nexus between the sustained misconduct and 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the efficiency of the service, FIND that the agency established nexus by 

preponderant evidence and that the penalty of removal is within the tolerable 

limits of reasonableness, and SUSTAIN the appellant’s removal. 

¶2 The appellant was removed for conduct unbecoming a Federal employee 

after intimately touching a female coworker without her consent while they were 

both off-duty in the appellant’s apartment, which, due to the remote nature of the 

worksite at the Tongass National Forest in Thorne Bay, Alaska, was leased from 

the agency and which was located on property owned by the agency. Initial 

Appeal File (IAF), Tab 8 at 16, 24-25, 76, 100-04; Hearing Transcript Day 1 

(HT-1) at 66; Hearing Transcript Day 2 (HT-2) at 43, 46. The appellant appealed 

his removal to the Board. IAF, Tab 1. After holding a hearing, the administrative 

judge issued a November 29, 2017 initial decision finding that, although the 

agency proved its charge by preponderant evidence, it failed to prove that a nexus 

existed between the sustained misconduct and the efficiency of the service. IAF, 

Tab 26, Initial Decision (ID) at 3-12, 20-24. Accordingly, she reversed the 

appellant’s removal and ordered the agency to provide interim relief in 

accordance with 5 U.S.C. § 7701(b)(2)(A) if either party filed a petition for 

review. ID at 24-26. 

¶3 The agency has filed a petition for review of the initial decision arguing that 

the administrative judge erred in finding that it failed to establish the required 

nexus. Petition for Review (PFR) File, Tab 7. It also argues that the removal 

penalty was reasonable. Id. The appellant has filed a response to the agency’s 

petition for review, to which the agency has replied. PFR File, Tabs 9-10.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency is in compliance with the administrative judge’s interim relief order.

¶4 With its request for an extension of time to file a petition for review, the 

agency submitted a certification of its compliance with the interim relief order. 

PFR File, Tab 1 at 15-21. The agency filed a December 20, 2017 letter 

instructing the appellant to return to work on January 2, 2018, a Standard 
3

Form 52 requesting the appellant’s interim appointment to his former GS-9 

Biological Science Technician position with an effective date of November 29, 

2017, and timesheets reflecting the appellant’s administrative leave pay status 

from November 29, 2017, through the date of the agency’s submission. Id. The 

agency asserts that, although the appellant was appointed to a different duty 

location, a return to his prior duty station would be unduly disruptive because his 

position at the prior location was abolished. Id. at 17. 

¶5 In response to the agency’s petition for review, the appellant, among other 

things, challenges the agency’s compliance with the interim relief order. 

PFR File, Tab 9 at 6-8. Specifically, he argues that the agency’s contention that 

his prior position at the prior location was abolished is “demonstrably false,” the 

agency failed to restore his forest protection officer (FPO) status, it restricted his 

ability to perform his job duties by limiting his access to a certain computer 

network drive, and it only provided funding for his position for 20 days.2 Id.

¶6 We find that the agency has proven that it complied with the administrative 

judge’s interim relief order. The Board has held that an interim relief order 

generally requires that an appellant be returned to the position from which he was 

separated, effective as of the date of the initial decision, unless the agency 

determines that this action would unduly disrupt the work environment. Chavies 

v. Department of the Navy, 104 M.S.P.R. 81, ¶ 4, n.1 (2006). Here, it is 

 

2

Following the agency’s reply to the appellant’s response to its petition for review, the 

appellant filed a motion for leave to file a surreply. PFR File, Tab 12. Such a pleading 

is generally not allowed absent approval by the Office of the Clerk of the Board based 

upon a party’s motion describing the nature of and need for the pleading. See Martin v.

U.S. Postal Service, 123 M.S.P.R. 189, ¶ 8 n.1 (2016); 5 C.F.R. § 1201.114(a)(5). 

Here, although the appellant argues that a surreply is necessary to address the agency’s 

“mischaracterizations” of the interim relief order and to “clarify” his allegations 

concerning the agency’s failure to provide interim relief, he has not contended that the 

agency failed to reinstate him. PFR File, Tab 12 at 4. As explained below, the agency 

provided proper certification that it reinstated the appellant and made an undue 

disruption determination regarding his duty location consistent with the interim relief 

order and 5 U.S.C. § 7701(b)(2)(A). Thus, we discern no need for this additional 

pleading. Accordingly, the appellant’s motion for leave to file a surreply is denied. 
4

undisputed that the agency returned the appellant to his GS-9 Biological Science 

Technician position and that the agency made an undue disruption determination 

with respect to his duty location. PFR File, Tab 1 at 17-19. Such relief is 

consistent with 5 U.S.C. § 7701(b)(2)(A), (B). See Costin v. Department of 

Health and Human Services, 72 M.S.P.R. 525, 533 (1996) (confirming that an 

agency may, as part of an undue disruption determination, detail, assign, and 

transfer an employee to a different duty location). Further, it is well settled that 

the Board lacks the authority to review the merits of the agency’s undue 

disruption determination. King v. Jerome, 42 F.3d 1371, 1374-75 (Fed. Cir. 

1994); Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 6 (2007), aff’d, 301 F. 

App’x 923 (Fed. Cir. 2008); Byers v. Department of Veterans Affairs, 

89 M.S.P.R. 655, ¶ 5 (2001). Thus, the Board may not consider the appellant’s 

claim that the basis of the agency’s undue disruption determination is 

“demonstrably false.” 

¶7 The appellant’s remaining arguments amount to an assertion that the agency 

has not provided status quo ante relief. PFR File, Tab 9 at 6-8. Interim relief is 

not intended as a status quo ante remedy. See Parbs, 107 M.S.P.R. 559, ¶ 6; 

Moreno v. Department of the Air Force, 61 M.S.P.R. 396, 398 (1994) (explaining 

that interim relief is intended to preserve only a limited aspect of the employment 

relationship by prospectively returning the appellant to duty and pay status from 

the date of the initial decision). Because the record reflects that the agency 

returned the appellant to duty in a pay status in the same position he previously 

held and made an undue disruption determination regarding his duty location, we 

find that the agency complied with the interim relief order. See 5 U.S.C. 

§ 7701(b)(2)(A),(B); 5 C.F.R. § 1201.111(c)(1).

The agency proved that a nexus exists between the sustained misconduct and the 

efficiency of the service. 

¶8 As explained above, the administrative judge reversed the appellant’s 

removal based on her finding that the agency failed to establish a nexus between 
5

the appellant’s off-duty misconduct and the efficiency of the service. ID 

at 20-24. The nexus requirement, for purposes of whether an agency has shown 

that its action promotes the efficiency of the service, means there must be a clear 

and direct relationship between the articulated grounds for an adverse action and 

either the employee’s ability to accomplish his duties satisfactorily or some other 

legitimate government interest. Scheffler v. Department of the Army, 

117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). An 

agency may show a nexus between off-duty misconduct and the efficiency of the 

service by three means: (1) a rebuttable presumption in certain egregious 

circumstances; (2) preponderant evidence that the misconduct adversely affects 

the appellant’s or coworkers’ job performance or the agency’s trust and 

confidence in the appellant’s job performance; or (3) preponderant evidence that 

the misconduct interfered with or adversely affected the agency’s mission. Id., 

¶ 10; Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987). 

¶9 Examples of misconduct so egregious as to create a rebuttable presumption 

of nexus include drug trafficking and child molestation. See Brook v. Corrado, 

999 F.2d 523, 527-28 (Fed. Cir. 1993); Allred v. Department of Health and 

Human Services, 786 F.2d 1128, 1130-31 (Fed. Cir. 1986). The administrative 

judge found that the appellant’s misconduct was not so egregious as to create a 

presumption of nexus. ID at 20-21. The agency does not challenge this finding 

on review, and we discern no reason to disturb it. PFR File, Tab 7. 

¶10 Regarding the third means of establishing nexus—that the misconduct 

interfered with or adversely affected the agency’s mission—the Board has held 

that, absent a finding that the conduct was directly opposed to the agency’s 

mission, a finding that the conduct was contrary to the agency’s culture and 

values does not warrant a finding of nexus. See Scheffler, 117 M.S.P.R. 499, 

¶ 12. In the initial decision, the administrative judge found that the agency failed 

to offer any evidence to establish that the appellant’s off-duty misconduct 

interfered with or adversely affected the agency’s mission. ID at 21. The agency 
6

similarly does not challenge this finding on review, and we discern no reason to 

disturb it. PFR File, Tab 7. 

¶11 Regarding the second means of establishing nexus—preponderant evidence 

that the misconduct adversely affects the appellant’s or coworkers’ job 

performance or the agency’s trust and confidence in the appellant’s job 

performance—the administrative judge concluded that there was no evidence that 

the appellant’s or the female coworker’s performance was adversely affected by 

the off-duty misconduct and that the deciding official’s conclusion that he lost 

confidence in being able to place the appellant in a remote setting was 

undermined by the fact that the appellant was reassigned to another remote 

setting. ID at 22-23. We disagree with the administrative judge’s analysis. 

¶12 The female employee testified that she was uncomfortable around the 

appellant, that she “didn’t even feel safe just being in the bunkhouse across the 

street from him,” and that she was placed on administrative leave and effectively 

paid for a week of work without having to perform any duties. HT-1 at 34-37. 

She also testified that, although her appointment expired shortly after the 

incident, she would not return to Alaska because she physically would not feel 

comfortable there and that she “lost interest in working for the agency” as a result 

of the incident. HT-1 at 45-46. Thus, the appellant’s misconduct had an adverse 

impact on the female coworker’s job performance. Concerning the appellant’s 

performance, following the incident, the agency placed him on administrative 

leave and then reassigned him to a position 50 miles away. HT-1 at 86. This 

reassignment had an impact on his job performance, as he took on a new position 

at a new duty location. Additionally, this reassignment to a new location supports 

the deciding official’s statement that he lost trust in the appellant’s ability to 

perform his duties in the same remote location. IAF, Tab 8 at 32-33; HT-2 at 49, 

70.

¶13 Moreover, because of the nature of their work, agency employees often 

reside on its property in apartments leased from the agency in close proximity to 
7

one another. IAF, Tab 8 at 31; HT-2 at 43, 46. We conclude that the appellant’s 

off-duty misconduct, which involved inappropriate and unwanted sexual contact 

with a coworker, could negatively impact how agency employees live and work in

this setting. See Doe v. National Security Agency, 6 M.S.P.R. 555, 562 (1981) 

(stating that the deleterious effect of the misconduct at issue on the efficiency of 

the service may be either presently existent or reasonably foreseeable), aff’d sub 

nom. Stalans v. National Security Agency, 678 F.2d 482 (4th Cir.1982). Based on 

the foregoing, we find that the agency proved by preponderant evidence that the 

misconduct at issue here adversely affected the appellant’s and his coworker’s 

performance and that the agency legitimately lost trust and confidence in the 

appellant’s ability to perform his duties. Accordingly, we reverse the 

administrative judge’s finding in this regard and find that the agency proved by 

preponderant evidence that a nexus exists between the appellant’s off-duty 

misconduct and the efficiency of the service. 3

The agency proved by preponderant evidence that the penalty of removal is 

within the tolerable limits of reasonableness. 

¶14 In addition to proving its charge and nexus by preponderant evidence, the 

agency must also establish that the penalty of removal is within the tolerable 

limits of reasonable.4 Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, 

¶ 18 (2013); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981). 

Here, because of the administrative judge’s disposition of the appeal below, she 

did not consider the penalty. Remand is not necessary to resolve this issue, 

however, because the record is sufficiently developed on the penalty issue to fully 

 

3

To not find nexus under the facts here would create a strange dichotomy in which 

agencies are obligated to address sexual misconduct that occurred between coworkers 

on duty but would not feel compelled to address sexual misconduct that occurred 

between coworkers off duty. 

4 As briefly stated above, the administrative judge found that the agency proved its 

charge of conduct unbecoming a Federal employee by preponderant evidence. ID 

at 3-12. Neither party challenges this finding on review, and we discern no reason to 

disturb it. 
8

consider it here. See Lednar v. Social Security Administration, 82 M.S.P.R. 364, 

¶ 15 (1999). 

¶15 When, as here, all of the charges are sustained, the Board will review the 

agency-imposed penalty only to determine if the agency considered all the 

relevant factors and exercised management discretion within the tolerable limits 

of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 

(2010). The Board’s function is not to displace management’s responsibility or to 

decide what penalty it would impose, but to assure that management’s judgment 

has been properly exercised and that the penalty selected by the agency does not 

exceed the maximum limits of reasonableness. Stuhlmacher v. U.S. Postal 

Service, 89 M.S.P.R. 272, ¶ 20 (2001); Douglas, 5 M.S.P.R. at 306. Thus, the 

Board will modify a penalty only when it finds that the agency failed to weigh the 

relevant factors or that the penalty the agency imposed clearly exceeds the bo unds 

of reasonableness. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20.

¶16 Here, in making his decision regarding the disciplinary action against the 

appellant, the deciding official prepared a document addressing the application of 

the Douglas factors5to the appellant’s situation and also testified about the 

penalty selection during the hearing. IAF, Tab 8 at 29-34; HT-2 at 42-54. He 

stated that the agency has a duty to maintain a safe working environment at all of 

its facilities and for all of its employees and that the appellant’s misconduct, 

although off-duty, was disruptive to that safe environment. IAF, Tab 8 at 30-31; 

HT-2 at 46-47. The deciding official concluded that the appellant’s misconduct 

was serious, particularly given the unwanted “skin-to-skin contact” underneath 

the female coworker’s clothes. IAF, Tab 8 at 30; see HT-2 at 43. Of particular 

importance to the deciding official was the remote nature of the work site and the 

close proximity in which employees worked and lived and the misconduct’s 

impact on agency operations. IAF, Tab 8 at 31; HT-2 at 45-46. As such, he 

 

5

In Douglas, the Board set forth a nonexhaustive list of 12 factors that are relevant for 

consideration in determining the appropriateness of a penalty. 5 M.S.P.R. at 305 -06. 
9

stated that he lost trust and confidence that the appellant could live and work in 

such a setting without engaging in the same conduct in the future, which would 

affect agency operations. IAF, Tab 8 at 32-33; HT-2 at 45-46, 49, 70.

¶17 In considering the appellant’s potential for rehabilitation, the deciding 

official explained that, although the appellant appeared remorseful in the 

immediate aftermath of the incident, even calling the female coworker the 

following day to apologize, the appellant appeared to “recant[]” that remorse, 

assert that he had “implied consent,” and “blame” the female coworker during the 

disciplinary proceedings. IAF, Tab 8 at 33. Thus, the deciding official stated in 

his Douglas factors analysis that he had “little confidence” that the appellant 

would refrain from similar misconduct in the future. Id. 

¶18 The deciding official also considered relevant mitigating factors, such as 

the appellant’s lack of a prior discipline, his 13.5 years of service with the 

agency, and his superior performance ratings.6 Id. at 31; HT-2 at 47-48. The 

deciding official also considered the substantial support the appellant received 

from coworkers who provided statements on the appellant’s behalf but noted that 

none of the statements came from employees in supervisory or managerial

positions. IAF, Tab 8 at 32; HT-2 at 48, 70. Furthermore, the deciding official 

explained that he considered alternative penalties, including a last-chance 

agreement and an “extensive or substantial suspension,” but he concluded that the 

 

6

The deciding official also considered the appellant’s assertions from his reply to the 

notice of proposed removal. In his reply, the appellant offered as a mitigating factor 

the fact that he was intoxicated prior to the incident. IAF, Tab 8 at 34. However, the 

deciding official reasoned that, although the appellant was intoxicated, he nonetheless 

was aware of his actions and knew they were inappropriate. Id.; HT-2 at 50. The 

appellant also asserted in his reply that he was aware that the female coworker had 

consensual sexual interactions with other members of the community at other times, but 

the deciding official concluded that these people were not agency employees, nor were 

the female coworker’s actions in another circumstance relevant to the appellant’s 

interaction with her in this appeal. IAF, Tab 8 at 34; HT-2 at 50-51. Accordingly, the 

deciding official did not consider either of these arguments to be mitigating factors. 

IAF, Tab 8 at 34; HT-2 at 49-51.
10

only way to ensure that such misconduct did not occur again was to remove the 

appellant from Federal service. HT-2 at 52; see IAF, Tab 8 at 34.

¶19 Based on the foregoing, we find that the agency proved by preponderant 

evidence that the deciding official considered all the relevant factors and 

exercised managerial judgment and discretion in imposing the penalty of removal. 

As such, the agency’s penalty determination is entitled to deference. See Jackson 

v. Department of the Army, 99 M.S.P.R. 604, ¶ 4 (2005); Stuhlmacher, 

89 M.S.P.R. 272, ¶ 20. 

¶20 We further find, given the seriousness of the offense, which, again, 

involved the unwanted skin-to-skin sexual touching of a coworker, the remote 

nature of the appellant’s work, and the deciding official’s loss of trust and 

confidence in the appellant’s ability to live and work in such a setting without 

creating a disruptive and unsafe environment, that the penalty of removal is 

within the tolerable limits of reasonableness. See Brown v. Department of the 

Navy, 229 F.3d 1356, 1358, 1363-64 (Fed. Cir. 2000) (affirming a removal of a 

Morale, Welfare, and Recreation Department employee based on a charge of 

improper personal conduct involving an off-duty consensual affair with the 

spouse of a deployed military officer); Martin v. Department of Transportation, 

103 M.S.P.R. 153, ¶ 13 (2006) (explaining that the most important Douglas factor 

is the nature and seriousness of the offense and its relation to the employee’s 

duties, position, and responsibilities), aff’d, 224 F. App’x. 974 (Fed. Cir. 2007); 

Stephens v. Department of the Air Force, 58 M.S.P.R. 502, 506 (1993) (stating 

that even a single instance of indecent and disgraceful conduct involving sexual 

contact toward a coworker can support a penalty of removal; there need not be a 

pattern of such behavior before removal is reasonable). In reaching our 

conclusion regarding the reasonableness of the removal, we have considered the 

appellant’s length of service, his positive performance appraisals, and the support 

of his coworkers, but find that those factors do not outweigh the factors 

supporting removal. 
11

¶21 Accordingly, we sustain the appellant’s removal. 

NOTICE OF APPEAL RIGHTS7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

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

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

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

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

§ 7703(b)(1)(A). 

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

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

following address: 

 

7

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

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

Board cannot advise which option is most appropriate in any matter.
12

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case. 

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

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

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

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

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

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

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

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

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 
13

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

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

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

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

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

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

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

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

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

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

this decision. 

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

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

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

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

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

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

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

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

If so, and your judicial petition for review “raises no challenge to the Board’s 
14

disposition of allegations of a prohibited personnel practice described in section 

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

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

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

competent jurisdiction.8 The court of appeals must receive your petition for 

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

§ 7703(b)(1)(B). 

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case. 

 

8

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

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board