UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES DERECK ADAMS,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBERS

DC-3443-17-0431-I-1

DC-3343-17-0432-I-1

DC-0752-17-0433-I-1

DC-3443-17-0643-I-1

1

DATE: January 5, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL2

Charles Dereck Adams, Herndon, Virginia, pro se.

James J. Delduco, Esquire, and Michael Colopy, Esquire, Redstone 

Arsenal, Alabama, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

 

1 We have joined these cases for adjudication based on our determination that doing so 

will expedite processing of the cases and will not adversely affect the interests of the 

parties. 5 C.F.R § 1201.36(a)(2), (b).

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, the first 

of which indicated above was dismissed as barred by res judicata, the second and 

fourth of which were dismissed for lack of jurisdiction, and the third of which 

was dismissed as barred by collateral estoppel. Generally, we 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 was 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 these appeals, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petitions for review. Therefore, we DENY the petitions for review and AFFIRM 

the initial decisions, which are now the Board’s final decisions. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND

¶2 The appellant was a GS-15 Information Technology (IT) Specialist with the 

agency’s Missile Defense Agency (MDA). On January 29, 2009, he was 

reassigned to a GS-15 IT Specialist at the Pentagon but was very shortly 

thereafter reassigned back to his position at MDA. A Board administrative judge 

dismissed the appellant’s appeal of that action for lack of jurisdiction, Adams v. 

Department of Defense, MSPB Docket No. DC-3443-15-0768-I-1, Initial

Decision at 1, 3 (July 15, 2015), the full Board denied the appellant’s petition for 

review, Adams v. Department of Defense, MSPB Docket No. DC-3443-15-0768-I-
3

1, Final Order, ¶ 1 (Oct. 27, 2015), and the U.S. Court of Appeals for the Federal 

Circuit affirmed the Board’s decision, Adams v. Department of Defense, 651 F.

App’x 993 (Fed. Cir. 2016).

¶3 The appellant was indefinitely suspended continuously from June 15, 2009, 

based on his loss of access to classified information. That action was upheld on

appeal, Adams v. Department of Defense, MSPB Docket No. DC-0752-09-0620-I1, Initial Decision at 1, 6 (Aug. 12, 2009), the Board denied the appellant’s 

petition for review of that decision, Adams v. Department of Defense, MSPB 

Docket No. DC-0752-09-0620-I-1, Final Order at 2 (Sept. 23, 2009), and the 

Federal Circuit affirmed the Board’s decision, Adams v. Department of Defense, 

371 F. App’x 93 (Fed. Cir. 2010). The appellant was removed effective June 29, 

2010, for failure to maintain a security clearance with access to Sensitive 

Compartmented Information, necessary to perform the duties of his position. On 

appeal, a Board administrative judge affirmed the agency’s action. Adams v. 

Department of Defense, MSPB Docket No. DC-0752-10-0741-I-1, Initial 

Decision at 1, 5 (Sept. 28, 2010). Earlier, on April 20, 2010, the appellant 

submitted an application for immediate retirement, which the agency denied on 

the basis that he did not meet the requirements for such. On appeal, the appellant 

argued that the agency denied his request for early retirement under the agency’s 

Voluntary Early Retirement Authority (VERA) and that the denial was the result 

of discrimination and retaliation. The administrative judge dismissed that appeal 

for lack of jurisdiction. Adams v. Department of Defense, MSPB Docket No. 

DC-3443-10-0711-I-1, Initial Decision at 1, 4 (Sept. 22, 2010). The Board joined 

for adjudication the appellant’s petitions for review of those two decisions and 

denied both. Adams v. Department of Defense, MSPB Docket Nos. DC-0752-10-

0741-I-1 and DC-0752-10-0711-I-1, Final Order (Mar. 4, 2011). The Federal 

Circuit affirmed the Board’s decision as to the appellant’s removal. Adams v. 

Department of Defense, 688 F.3d 1330, 1334 (Fed. Cir. 2012). Notwithstanding, 

the appellant filed another appeal challenging his indefinite suspension and 
4

removal. The administrative judge dismissed that appeal as barred by res 

judicata, and the full Board denied the appellant’s petition for review of that 

initial decision. Adams v. Department of Defense, MSPB Docket No. DC-0752-

14-1033-I-1, Final Order, ¶ 1 (Apr. 30, 2015).

ANALYSIS

¶4 The four appeals here joined for review all relate to the actions and/or the 

time frame described above. We address each appeal in turn.

MSPB Docket No. DC-3443-17-0431-I-1

¶5 In this appeal, the appellant alleged that he was improperly suspended 

without pay for a year prior to his “unlawful[]” removal and that the agency 

violated his due process rights by “Not Treating Me as Innocent Until Proven 

Guilty.” 0431 Initial Appeal File (0431 IAF), Tab 1 at 4. The appellant alleged 

that the agency’s action was motivated by age and race discrimination, id., and he 

requested a hearing, id. at 2.

¶6 Noting the appellant’s previous appeals of his indefinite suspension and 

removal, the administrative judge directed him to show why this appeal should 

not be barred by res judicata. 0431 IAF, Tab 3. In response, the appellant argued 

that the current appeal was not a duplication of his previous appeals, and he 

alleged that the agency denied him due process, committed various prohibited 

personnel practices, and willfully withheld evidence. 0431 IAF, Tabs 4-5, 7.

¶7 In an initial decision based on the written record, the administrative judge 

dismissed the appeal as barred by res judicata. 0431 IAF, Tab 8, 0431 Initial 

Decision (0431 ID) at 1, 4. He found that: (1) an indefinite suspension of more 

than 14 days is an action over which the Board has jurisdiction, and both the 

Board and Federal Circuit were fora of competent jurisdiction; (2) the latter 

rendered a final judgment on the merits of the indefinite suspension; (3) the same 

cause of action, the propriety of the indefinite suspension, was at issue in both the 

prior appeal and the current one; and (4) both the appellant and the agency were 
5

parties to the prior action. Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 5 

(2003); 0431 ID at 3. The administrative judge further found that the appellant’s 

claims of denial of due process and agency wrongdoing in allegedly withholding

evidence did not preclude the application of res judicata and that the Board 

cannot consider the appellant’s alleged prohibited personnel practices in the 

absence of jurisdiction. 0431 ID at 4.

¶8 On review, the appellant references the Federal Circuit’s decision, which 

found that his VERA claim was within the Board’s jurisdiction under 5 U.S.C. 

§ 8461 because it concerned employment rights and benefits, Adams, 688 F.3d 

at 1336, and he argues that, based on that decision, the instant appeal is within the 

Board’s jurisdiction. 0431 Petition for Review (PFR) File, Tab 1 at 4. Here, it is 

undisputed that the Board has jurisdiction over an appeal of an indefinite 

suspension. However, the instant appeal was dismissed under the doctrine of res 

judicata; thus, the appellant’s jurisdictional arguments are inapposite. Moreover, 

the appellant has not shown that the court’s decision finding Board jurisdiction 

over his VERA claim has any bearing on the action here at issue. Nor has he 

shown that the administrative judge erred in finding that this appeal is barr ed by 

res judicata. Corpuz v. Office of Personnel Management, 100 M.S.P.R. 560, ¶ 3 

(2005).

¶9 The appellant also appears to argue on review that the agency’s decision is 

based on discrimination. 0431 PFR File, Tab 1 at 7, Tab 3. As noted, the 

administrative judge found that, absent jurisdiction, the Board cannot adjudicate 

prohibited personnel practices. 0431 ID at 4. In fact, however, the administrative 

judge correctly found that the Board has jurisdiction over the appellant’s 

indefinite suspension. Id. at 3. Even so, it remains true that the Board lacks the 

authority to review the appellant’s discrimination claims because it lacks the 

authority to review the merits of an action that is based on a suspension or 

revocation of access to classified material. Helms v. Department of the Army, 

114 M.S.P.R. 447, ¶ 9 (2010). The Federal Circuit made such a finding in its 
6

decision affirming the Board’s decision sustaining the appellant’s indefinite 

suspension. Adams, 371 F. App’x at 95-96. In any event, to the extent the 

administrative judge erred, any such error did not prejudice the appellant’s 

substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 

(1984). The administrative judge correctly found that the appellant is precluded 

by res judicata from relitigating his indefinite suspension, and that bar includes

his related claims of discrimination. Peartree v. U.S. Postal Service, 66 M.S.P.R. 

332, 337 (1995).

¶10 The appellant argues on review that he was denied a hearing. 0431 PFR

File, Tab 1 at 6. Because the material facts relevant to the dispositive res judicata 

issue are undisputed, we find that the administrative judge did not err in declining 

to conduct a hearing. Adams v. Department of Defense, MSPB Docket No. 

DC-0752-14-1033-I-1, Final Order, ¶ 8 (Apr. 30, 2015).

¶11 It is unclear from the appellant’s petition for review whether, in addition to 

his indefinite suspension, he is also challenging his removal. To the extent that 

he is, however, he has not shown that the administrative judge erred in finding 

that, for the same reasons, any such appeal is also barred by res ju dicata.3 

0431 ID at 2-3.

MSPB Docket No. DC-3443-17-0432-I-1

¶12 In this appeal, the appellant alleged that the agency improperly lowered his 

performance rating by two levels and gave him a “1” rating without placing him 

on a performance improvement plan (PIP). 0432 IAF, Tab 1 at 4. He also 

claimed that the agency discriminated and retaliated against him, id., and he

requested a hearing, id. at 5.

¶13 The administrative judge advised the appellant that the Board lacks 

jurisdiction to adjudicate an appeal of an employee’s performance evaluation and 

 

3

It appears that, in this petition for review, the appellant is challenging the initial 

decision in another of his appeals, MSPB Docket No. DC-3443-17-0432-I-1. 0431 PFR 

File, Tab 1 at 5. Therefore, we do not address those concerns here.
7

that placement on a PIP is a prerequisite to the agency’s taking a 

performance-based action under 5 U.S.C. chapter 43, and he ordered the appellant

to file evidence and argument showing a nonfrivolous allegation of Board 

jurisdiction. 0432 IAF, Tab 3. In response, the appellant argued that the agency 

took these actions because of his race and age and described the actions as unfair, 

unethical, immoral, and wrong, as well as violative of undescribed policies, 

procedures, rules, regulations, laws, and statutes. 0432 IAF, Tab 4 at 6. He also 

argued that the agency willfully withheld vital evidence “that would have 

changed MSPB’s decision.” Id. at 7. He submitted a copy of the Federal 

Circuit’s decision finding Board jurisdiction over his VERA claim. Id. at 17. 

The agency urged that the appeal be dismissed for lack of jurisdiction. 0432 IAF, 

Tab 6.

¶14 In an initial decision based on the written record, the administrative judge 

found that the Board lacks jurisdiction to adjudicate an appeal of an employee’s 

performance evaluation under the provisions of chapter 75, 0432 IAF, Tab 8, 

0432 ID at 2, and found that the appellant’s allegations of prohibited personnel 

practices fail to establish the Board’s jurisdiction over the appeal, 0432 ID at 3. 

As such, the administrative judge dismissed the appeal for lack of jurisdiction. 

0432 ID at 1, 3.

¶15 On review, the appellant again argues that the Board has jurisdiction over 

his appeal because of the Federal Circuit’s decision finding Board jurisdiction 

over his VERA claim. 0432 PFR, Tab 1 at 4-5. As noted previously, the court 

found Board jurisdiction over that claim under 5 U.S.C. § 8461(e) because it 

provides that an administrative action or order affecting the rights or interests of 

an individual under chapter 84 of the U.S. Code (Federal Employees’ Retirement 

System) may be appealed to the Board. Adams, 688 F.3d at 1336. The appellant 

has not shown, nor is it otherwise apparent, that the court’s decision is controlling 

over the matter here at issue.
8

¶16 Although the appellant argues the merits of the agency’s decisions 

regarding his performance evaluation, 0432 PFR File, Tab 1 at 7, Tab 2 at 4, any 

such arguments may not be heard absent Board jurisdiction over his appeal. He

also argues that he was improperly denied a hearing. 0432 PFR File, Tab 1 

at 5-6. However, because he failed to make a nonfrivolous allegation that the 

Board has jurisdiction over his appeal, he is not entitled to a hearing, and 

therefore the administrative judge did not err in deciding this case on the written 

record. Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236, 

¶ 13 (2009).

¶17 The appellant argues that there is new and material evidence that, despite 

his due diligence, was not available when the record closed. 0432 PFR File, 

Tab 1 at 6. The evidence, which the appellant has not submitted, appears to relate 

to his claim that the agency improperly withheld evidence in connection with one 

of the appeals he filed in 2009. Id. at 5-6; 0432 PFR File, Tab 2 at 10-11. The 

Board generally will not consider evidence submitted for the first time with the 

petition for review absent a showing that it was unavailable before the record was 

closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 

3 M.S.P.R. 211, 214 (1980). Moreover, the Board ordinarily will not grant a 

petition for review based on new evidence absent a showing that it is of sufficient 

weight to warrant an outcome different from that of the initial decision . Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The appellant has not 

shown that any such evidence is new or material to the matter at issue in this 

appeal.4

 

4

The appellant also urges that the U.S. District Court for the Eastern District of 

Virginia erred when it upheld “the MSPB decision.” 0432 PFR File, Tab 1 at 7. The

appellant has not further identified any such decision, and our research does not reveal 

one. Even if it exists, the appellant has not shown that such a decision has any 

relevance to the matter at issue.
9

MSPB Docket No. DC-0752-17-0433-I-1

¶18 In this appeal, the appellant alleged that the agency unlawfully lowered his 

salary, reducing his pay, when it “pulled [him] back” from a position at the 

Pentagon for which he had been selected. 0433 IAF, Tab 1 at 4. He requested a 

hearing. Id. at 2.

¶19 Noting that the Board already had considered the matter in a prior appeal,

which it dismissed for lack of jurisdiction, the administrative judge ordered the 

appellant to show why this appeal should not be dismissed as barred by collateral 

estoppel. 0433 IAF, Tab 8. In his response, the appellant argued that the current 

appeal was new and that the “violation” had not been addressed in any of his 

prior appeals. 0433 IAF, Tab 9. He also argued that this appeal concerns 

discrimination and retaliation by the agency, which withheld “vital evidence.” 

Id. at 5-6; 0433 IAF, Tabs 10-11. The agency urged that the appeal be dismissed. 

0433 IAF, Tab 12.

¶20 In an initial decision based on the written record, the administrative judge 

dismissed the appeal as barred by collateral estoppel. 0433 IAF, Tab 13, 0433 

Initial Decision (0433 ID) at 1, 4. He found that: (1) the current issue is 

identical to the issue involved in the prior action wherein the appellant challenged 

the agency action in reducing him in pay when it reassigned him to his former 

position; (2) the administrative judge dismissed that appeal for lack of 

jurisdiction and that decision was affirmed by the Board and by the Federal 

Circuit; (3) the previous jurisdictional determination was necessary to the final 

judgment against the appellant; and (4) he had a full and fair opportunity to 

litigate the issue before the Board and the Federal Circuit. McNeil v. Department 

of Defense, 100 M.S.P.R. 146, ¶ 16 (2005); 0433 ID at 2-3. 

¶21 The appellant challenges the initial decision on review but does not address 

the dispositive issue of collateral estoppel. 0433 PFR File, Tabs 3-4. The agency 

has responded, urging that the petition for review be denied. 0433 PFR File, 

Tab 7.
10

¶22 The Board has found that collateral estoppel should be applied to previously 

adjudicated jurisdictional issues, so as to preclude their relitigation. Peartree,

66 M.S.P.R. at 338. Here, the administrative judge correctly found that the 

current appeal raises a jurisdictional claim identical to the claim raised in the 

appellant’s prior appeal; that is, that he was reduced in pay when the agency 

“pulled [him] back” from a position for which he had been selected. In the prior 

appeal, the Board found that the appellant failed to nonfrivolously allege that the 

agency’s action in “pulling [him] back” from the IT Specialist position to which 

he had been reassigned is a matter over which the Board has jurisdiction under 

5 U.S.C. § 7512, Adams, MSPB Docket No. DC-3443-15-0768-I-1, Final Order, 

¶ 8, and the Federal Circuit affirmed the Board’s decision, Adams, 651 F. App’x 

at 995. The jurisdictional issue was litigated in the former appeal, and that issue 

was necessary to the resulting judgment to dismiss the appeal for lack of 

jurisdiction. Moreover, the appellant, as a party to the former appeal, had a full 

and fair opportunity to litigate the jurisdictional issue. Therefore, the appellant

has not shown that the administrative judge erred in finding that he is collaterally 

estopped from relitigating his jurisdictional claim that he was reduced in pay 

when he was reassigned back to his position, and the claim is, as in the former 

appeal, dismissed for lack of jurisdiction. 5 McNeil, 100 M.S.P.R. 146, ¶ 19.

MSPB Docket No. DC-3443-17-0643-I-1

¶23 In this appeal, the appellant argued that the agency obstructed justice when 

it intentionally withheld evidence during one of his early appeals. 0643 IAF,

 

5

The appellant filed his petition for review in this case approximately 60 days after the 

filing deadline. 0433 PFR File, Tab 3. The Office of the Clerk of the Board directed 

him to file a motion to: (1) accept the filing as timely; and/or (2) waive the time limit 

for good cause. 0433 PFR File, Tab 5. The agency moved that the appellant’s petition 

for review be dismissed as untimely filed, 0433 PFR File, Tab 6, and the appellant 

responded to the Office of the Clerk of the Board’s letter regarding the timeliness of his 

petition and in opposition to the agency’s motion, 0433 PFR File, Tab 7. Because of 

our finding above that the appeal was properly dismissed as barred by collateral 

estoppel, we have made no findings on whether the petition for review was timely filed.
11

Tab 1. He requested a hearing. Id. at 2. The administrative judge advised the 

appellant that the Board may not have jurisdiction over such an action and of the 

limited exceptions to the rule that the Board may not address matters over which 

it otherwise lacks jurisdiction.

6

 The administrative judge ordered the appellant to 

file evidence and argument that the action is within the Board’s jurisdiction. 

0643 IAF, Tab 2. The appellant submitted a pleading that was substantially 

similar to his appeal but did not address the jurisdictional issue to which the 

administrative judge alerted him. 0643 IAF, Tab 3.

¶24 In an initial decision based on the written record, the administrative judge 

dismissed the appeal for lack of jurisdiction. 0643 IAF, Tab 4, 0643 Initial 

Decision (0643 ID) at 1, 3. 

¶25 The appellant has filed a petition for review, 0643 PFR File, Tab 1, and a 

supplement, PFR File, Tab 2. The agency has responded in opposition to the 

appellant’s petition, PFR File, Tab 4, and the appellant has replied to the 

agency’s submission, PFR File, Tabs 5-7.

¶26 In his petition, the appellant raises the same arguments as in his petitions 

for review in the other cases here joined. Specifically, he argues that the Board 

has jurisdiction over this appeal based on the Federal Circuit’s decision finding 

Board jurisdiction over his VERA claim, that the agency obstructed justice by 

withholding evidence relevant to one of his 2009 appeals, 0643 PFR File, Tab 2 

at 9-15, Tab 5, and that it discriminated and retaliated against him, 0643 PFR

File, Tab 1 at 5-8, Tab 2 at 5, 15-18, and committed other prohibited personnel 

practices, 0643 PFR File, Tab 2 at 7-8, Tab 6 at 7-9. He also argues that the 

administrative judge erred in denying him a hearing. 0643 PFR File, Tab 2 at 7. 

 

6

The administrative judge explained that the appellant could allege that the agency’s 

action was in retaliation for protected whistleblowing activity or that it was the product 

of discrimination based on uniformed service or violative of his veterans’ preference 

rights. 0643 IAF, Tab 2.
12

¶27 Notwithstanding the appellant’s claims on review, he has not shown that the 

administrative judge erred in dismissing this appeal for lack of jurisdiction. It is 

well established that the Board’s jurisdiction is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. See, e.g., Scott v. 

Department of the Air Force, 113 M.S.P.R. 434, ¶ 5 (2010). The appellant has 

failed to make a nonfrivolous allegation that there is a statutory or regulatory 

basis upon which the Board may review his claims against the agency. As we 

previously have noted, he has not shown that the court’s decision finding Board 

jurisdiction over his VERA claim is controlling over the matter at issue. Nor has 

he shown that any action allegedly taken by the agency during adjudication of an 

appeal he filed in 2009 has any bearing on the jurisdictional issue presented in 

this appeal. Absent an appealable action, the Board lacks jurisdiction to consider 

the appellant’s allegations of discrimination, retaliation, and other prohibited 

personnel practices. 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) (finding that prohibited personnel 

practices under 5 U.S.C. § 2302(b) are not an independent source of Board 

jurisdiction). And, because the appellant failed to make a nonfrivolous allegation 

that the Board has jurisdiction over this appeal, the administrative judge did not 

err in deciding this case on the written record. 7 Upshaw, 111 M.S.P.R. 236, ¶ 13.

 

7

The appellant has filed motions for summary judgment in the above cases seeking a 

ruling in his favor because of delays resulting from the Board’s continued lack of 

quorum. 0431 PFR File, Tab 8; 0432 PFR File, Tab 6; 0433 PFR File, Tab 12; 

0643 PFR File, Tab 11. Specifically, he alleges that he is being denied his 

Constitutional right to a speedy adjudication of his cases. Id. However, the right to a 

speedy and public trial as provided for in the 6th Amendment of the Constitution 

applies to criminal prosecutions, and therefore any such right is not implicated in a 

proceeding before the Board. Biddle v. Department of the Treasury, 63 M.S.P.R. 521, 

529 (1994) (finding that 6th Amendment rights were not implicated because the 

individual was not subjected to a custodial interrogation). Moreover, the Board’s 

procedures do not allow for summary judgment. Savage v. Department of the Army, 

122 M.S.P.R. 612, ¶ 46 (2015), overruled in part by Pridgen v. Office of Management & 

Budget, 2022 MSPB 31, ¶¶ 23-25. Therefore, the appellant’s motions are denied.
13

NOTICE OF APPEAL RIGHTS8

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: 

 

8

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.
14

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 
15

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 
16

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.9The 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. 

 

9

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. 
17

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