UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BERLIN J. THEODORE,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

PH-0752-16-0303-I-1

DATE: August 4, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Berlin J. Theodore, Abington, Pennsylvania, pro se.

Zlatko Jurisic, Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the agency’s removal action. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 was a Supply Systems Analyst, GS-2003-14, at the Defense 

Logistics Agency in Philadelphia, Pennsylvania. Initial Appeal File (IAF), Tab 5 

at 15. The agency removed him from Federal service based on two charges: 

(1) absence without leave (AWOL); and (2) unprofessional conduct. Id. at 83-88, 

95-98.

¶3 The first charge pertained to the appellant’s January 4, 2016 request for 

140 hours of leave for the period from January 25 through February 26, 2016, 

which comprised 40 hours of annual leave; 40 hours of sick leave; and 60 hours 

of leave without pay (LWOP). Id. at 39, 63, 83. The appellant failed to respond 

adequately to multiple requests from his immediate supervisor to provide a reason 

for the extended period of leave and to submit medical documentation supporting 

the requested sick leave. Id. at 36-39, 83-85. Instead, the appellant told his 

supervisor by telephone that he was not comfortable discussing personal matters 

with her “due to the toxic nature of [their] relationship,” and that he would take 

LWOP for the entire period he requested if she would not grant his leave request. 

Id. at 37. The appellant opined that his supervisor was harassing him and abusing 
3

her authority, and he stated that he was prepared to discuss issues related to the

requested leave, which he asserted fell under the Family and Medical Leave Act

of 1993 (FMLA), only with another individual with the authority to resolve the 

matter. Id.

¶4 On January 20, 2016, the appellant submitted a new FMLA leave request 

for the entire period from January 25 through February 26, 2016. Id. at 37, 64. 

His supervisor replied, acknowledging the appellant’s invoking the FMLA, and 

explaining that the appellant had to provide administratively acceptable medical 

documentation supporting his request for leave under the FMLA before it could 

be approved. Id. at 36-37. She gave the appellant 15 calendar days from 

January 21, 2016, in which to provide administratively acceptable medical

documentation. Id. at 36. She also explained that administratively acceptable 

medical documentation must include the following: (1) the date the serious 

health condition commenced; (2) the probable duration of the condition, or a 

certification that the condition is a chronic or continuing condition with an 

unknown duration, and if episodic, the likely duration and frequency of the 

episodes of incapacity; and (3) the appropriate medical facts concerning the 

condition, including information on incapacitation, examination, or treatment that 

may be required. Id.

¶5 The appellant submitted a completed FMLA certification form 

(Form WH-380-E) dated January 21, 2016. Id. at 66-70. The certification

reflected treatment dates in 2009, 2010, 2014, and 2015 for several ailments, and 

noted that the appellant would be unable to perform his job functions while 

suffering from such conditions. Id. at 67. The certification also noted that the 

appellant’s condition would require follow-up treatment and that episodic 

flare-ups were possible, making it necessary for him to be absent from work up to 

three times per week for a duration of 11⁄2 hours per episode. Id. at 68. The 

appellant’s absence from work began on January 25, 2016. IAF, Tab 1 at 12, 45, 

53, 56, 60.
4

¶6 On February 4, 2016, the appellant’s supervisor responded by email and by

letter mailed to the appellant’s residence. IAF, Tab 5 at 70-72. She 

acknowledged receiving the health certification form, but explained that it did not 

call for the 4 consecutive weeks of FMLA leave that the appellant had requested, 

and instead supported only periodic leave, as detailed above. Id. at 70, 72. 

However, she provisionally granted the appellant’s request for FMLA leave and 

gave him another 15 days in which to supplement his request with 

administratively acceptable medical documentation supporting the full 4-week 

absence he requested. Id.

¶7 On March 4, 2016, the supervisor sent the appellant another letter by mail 

and by email informing him that he would be charged AWOL for the period of his 

absence from January 25, 2016, until his return to duty because he had not 

responded to her February 2016 letter. Id. at 73-76. On March 7, 2016, the 

appellant informed his supervisor by telephone that he had received her March 4, 

2016 letter and was undergoing additional medical testing. Id. at 77. The 

supervisor’s contemporaneous notes reflect that she reiterated to him that his 

documentation did not support the 4 weeks of FMLA leave that he had requested

and that, as a result, he remained in an AWOL status. Id. The supervisor’s notes 

state that, when she asked the appellant when he would be returning to work, he

simply replied, “I’m invoking FMLA.” Id. The supervisor again reminded the 

appellant to submit administratively acceptable documentation supporting his 

absence, and that he would remain in AWOL status unless he did so. Id. He

responded by again invoking the FMLA and hanging up the telephone. Id.

¶8 The appellant returned to work on March 14, 2016, submitting a March 10,

2016 letter from The Neurology Group that stated that he had been under doctors’ 

care and evaluation since February 29, 2016. Id. at 78, 85. The letter further 

declared that the appellant was to avoid “stressful situations or stressful 

environment[s]” when he returned to work and that he might need additional 

intermittent days off to be completely evaluated. Id. The agency determined that 
5

the letter was administratively acceptable to support his absence from 

February 29 through March 11, 2016, and approved his application for FMLA 

leave for that period. Id. at 79, 85. However, for the period from January 25 

through February 26, 2016, the agency changed the appellant’s provisional grant 

of FMLA leave to AWOL. Id. at 85.

¶9 The agency then proposed the appellant’s removal based on charges of 

AWOL and unprofessional conduct. Id. at 83-88. The latter charge pertained to 

his abruptly terminating the March 7, 2016 telephone call with his supervisor. Id. 

at 83. The agency removed the appellant, and he filed this Board appeal. Id.

at 95-98; IAF, Tab 1. He did not request a hearing. IAF, Tab 1 at 1. During the 

proceeding before the administrative judge, the appellant did not dispute the 

substance of the charges, and instead he raised whistleblower retaliation as an 

affirmative defense. Id. at 2; IAF, Tab 9. He also claimed harassment and 

harmful procedural error in the agency’s decision to remove him, but as the 

administrative judge explained, the appellant did not specify the procedural defect 

or the allegedly harassing actions related to his removal.2 IAF, Tab 1 at 2; 

Tab 12, Initial Decision (ID) at 9.

¶10 The administrative judge sustained both charges, found that the agency 

established nexus, and determined that the penalty was reasonable. ID at 11-19. 

The administrative judge also found that the appellant failed to prove his 

affirmative defenses of harmful procedural error and retaliation for 

whistleblowing. ID at 19-22.

 

2

The appellant’s harassment claim appears related to the agency’s requirement that he 

present administratively acceptable medical documentation supporting his request for 

FMLA leave, IAF, Tab 5 at 37, and also to his disagreements with agency officials 

regarding earlier leave requests, IAF, Tab 9 at 68-79. The appellant does not 

specifically assert harassment or harmful procedural error on review.
6

ANALYSIS

The administrative judge correctly concluded that the agency met its burden of 

proof as to the charges.

¶11 On review, the appellant asserts that the administrative judge erroneously 

applied the law to the facts of this case and reached incorrect conclusions. 

Petition for Review (PFR) File, Tab 1 at 6-7; 5 C.F.R. § 1201.115(b). He also 

asserts that the administrative judge should have found that he submitted 

sufficient medical documentation to justify granting his FMLA leave request. 

PFR File, Tab 1 at 6-7.3

¶12 We have reviewed the administrative judge’s analysis and conclude that he 

correctly found that the agency met its burden to prove by preponderant evidence 

the charges of AWOL and unprofessional conduct. ID at 10, 11-17; see 5 C.F.R. 

§ 1201.56(b)(1)(ii). At the outset, we note that the administrative judge correctly 

indicated that the appellant did not deny the misconduct underlying the removal 

action. ID at 10. The record reflects that the agency gave the appellant multiple 

opportunities in which to present administratively acceptable medical 

documentation, including two opportunities after he invoked the right to take 

leave under the FMLA. IAF, Tab 5 at 36-49, 63-64, 66-70, 72-74, 77-79, 83-85. 

Although he ultimately presented documentation that supported his FMLA leave 

request for the latter part of his absence, he failed to present documentation 

supporting his leave request for January 25 through February 26, 2016. Id.

at 78-79, 85.

¶13 When an employee requests leave to cover his absences, an AWOL charge 

will be sustained only if the agency establishes that his requests were properly 

denied. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28 (2015), 

overruled on other grounds by Pridgen v. Office of Management and Budget, 

 

3 On review, the appellant does not challenge the administrative judge’s determination 

that the agency proved the second charge of unprofessional conduct, ID at 15 -17, and 

we find no reason to disturb that finding.
7

2022 MSPB 31, ¶¶ 23-25. The agency may require an employee who requests 

FMLA leave to provide administratively acceptable documentation supporting the 

request. 5 U.S.C. § 6383(a); 5 C.F.R. § 630.1208. Such documentation must 

include the following: (1) the date the serious health condition commenced; 

(2) the probable duration of the serious health condition, or a statement 

specifying that the serious health condition is a chronic or continuing condition 

with an unknown duration, whether the patient is presently incapacitated, and the 

likely duration and frequency of episodes of incapacity; and (3) the appropriate 

medical facts within the knowledge of the health care provider regarding the 

serious health condition, including a general statement as to the incapacitation, 

examination, or treatment that may be required by a health care provider. 

5 C.F.R. § 630.1208(b)(1)-(3). Documentation that fails to inform the agency of 

such information is administratively insufficient to support a request for medical 

leave. Lawley v. Department of the Treasury, 84 M.S.P.R. 253, ¶ 23 (1999). 

Here, we find that the appellant’s documentation did not provide sufficient 

information to support his absences prior to February 29, 2016. We thus agree 

with the administrative judge that the agency proved the charge of AWOL for a 

period of approximately 4 weeks from January 25 through February 26, 2016. 

IAF, Tab 5 at 85.

The administrative judge correctly found that the appellant failed to prove his 

allegation of whistleblowing.

¶14 On review, the appellant asserts that the administrative judge failed to 

recognize the pattern of whistleblowing retaliation that predated the events 

immediately leading to his removal. PFR File, Tab 1 at 6. The agency’s 

retaliatory actions, he alleges, include changing his telework schedule, 

transferring him to Philadelphia, and denying his leave requests. Id.; IAF, Tab 9 

at 13-15. As for the appellant’s whistleblowing claim, he stated that his first 

alleged disclosure pertained to a suggestion he made to the agency’s telework 

coordinator in November 2014 regarding ways in which the agency could improve 
8

its telework readiness reporting information. IAF, Tab 9 at 5, 20-25. His 

suggestions were forwarded to the appropriate personnel but were not adopted. 

Id. at 5. A few days later, his then-supervisor denied his request for an additional 

telework day each week, and he also received notice that he was no longer 

eligible for situational telework. Id. at 5-6, 29-31. At the time, he worked at Fort 

Belvoir, Virginia, but telecommuted from his family home in Philadelphia, 

Pennsylvania, on Mondays and Fridays. Id. at 5-6. The supervisor advised the 

appellant that he could transfer to a position in Philadelphia and he did so. Id.

at 6. Several weeks after the transfer, the appellant came under new second-level 

supervision. Id. at 7-8; IAF, Tab 11 at 7. Thereafter, he alleged, the agency 

retaliated against him because of this and other disclosures when his new 

second-level supervisor denied his leave requests and rescinded his existing 

situational telework agreement. IAF, Tab 9 at 9-11, 13-15, 65-79.

¶15 The appellant’s second alleged disclosure concerned his assessment of the 

agency’s audit readiness efforts regarding the Vendor Managed Inventory (VMI). 

Id. at 7-9, Attachment D. The appellant alleged to have made this disclosure to 

various agency officials between January and March 2015, including his new 

second-level supervisor.4 Id.; IAF, Tab 11 at 7-10. The agency contended that 

the appellant’s assessment was neither new nor controversial and that it did not 

reveal any potentially embarrassing information about agency operations and 

systems. IAF, Tab 11 at 8-9.

¶16 The administrative judge found that the appellant’s first alleged disclosure 

amounted to discussing generally a proposed policy that the agency rejected in 

favor of an existing policy. ID at 21-22. As for the second alleged disclosure, 

the administrative judge found that the appellant could not have reasonably 

believed he was disclosing information within one of the categories of 

 

4

The second-level supervisor was unable to determine if she had received this item 

when the appellant claimed to have sent it. IAF, Tab 11 at 7. 
9

wrongdoing set forth in the statute. ID at 22; see 5 U.S.C. § 2302(b)(8). The 

administrative judge thus found that the appellant did not make a protected 

disclosure under the statute. ID at 20-22.

¶17 We agree with the administrative judge’s findings. The appellant, by 

proposing a new policy about potentially improving telework reporting 

information and a new plan dealing with assessing the agency’s audit readiness 

efforts concerning the VMI section of the agency’s inventory reconciliation 

effort, seemed dissatisfied with the agency’s existing policies and/or plans on 

those issues. However, his purely subjective allegations of wrongdoing are 

insufficient to constitute a reasonable belief that the agency official’s actions here 

regarding those policies and/or plans represent an abuse of authority, gross 

mismanagement, a gross waste of funds, or a violation of law, rule, or regulation. 

Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); see Rebstock 

Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 12 

(2015) (holding that vague, conclusory, and unsupported allegations do not 

satisfy the Board’s nonfrivolous pleading standard). When, as here, an alleged 

whistleblower is merely expressing disagreement with fairly debatabl e policy 

decisions, or decisions plainly within managerial discretion, his disclosures do 

not fall within those defined as protected under 5 U.S.C. § 2302(b)(8). Cf.

O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013) (holding 

that the appellant’s alleged protected disclosure was “exactly the type of fairly

debatable policy dispute that does not constitute whistleblowing”), aff’d, 561 F. 

App’x 926 (Fed. Cir. 2014).5

The Board will not consider the appellant’s new argument on review.

¶18 The appellant does not challenge on review the administrative judge’s 

finding that he failed to make protected disclosures. Instead, the appellant asserts 

 

5 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. 
10

that he is providing new and material evidence, which he alleges shows that he 

made an additional disclosure or disclosures as early as April 2012 of which the 

deciding official was aware. PFR File, Tab 1 at 7; see 5 C.F.R. § 1201.115(d). 

The appellant alleges that these disclosures would have embarrassed the agency 

and, because he made them, his immediate supervisors were transferred to other 

positions, and he was placed under a new second-level supervisor. PFR File, 

Tab 1 at 8-9. He asserts that his new second-level supervisor “was then allowed 

to retaliate and [harass him] leading to his dismissal” and to prevent him from 

making further disclosures to the agency Inspector General. Id.

¶19 The Board generally will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The materials that the 

appellant submitted on review include email messages dated between March 13, 

2012, and March 27, 2014; a memorandum entitled “SITREP for Audit Readiness 

Support,” dated September 3, 2015; an undated organizational chart; and an 

undated outline labeled “Found in March.” PFR File, Tab 1 at 14-30. These 

documents appear to pertain to an earlier disclosure or disclosures that the 

appellant did not raise below during the proceedings before the administrative 

judge. Id. at 7-11. All of these items predate the July 7, 2016 close of the record. 

IAF, Tab 7 at 1. The appellant has not alleged that they were unavailable to him

despite his due diligence before the record closed, and indeed, he originated or 

received the email messages he submitted with his petition for review. PFR File, 

Tab 1 at 14-20. We thus decline to consider his new argument and evidence on 

review.

6

 

6 Additionally, the appellant submitted on review a partial copy of a pleading he filed

while this appeal was pending before the administrative judge. Compare PFR File, 

Tab 1 at 31-44, with IAF, Tab 9 at 4-18. The Board does not consider such submissions 
11

The administrative judge properly determined that the penalty of removal was 

warranted and promotes the efficiency of the service.

¶20 Finally, the appellant argues that the administrative judge “abused his 

discretion in deciding in favor of the agency” and in determining that removal 

was an appropriate penalty. PFR File, Tab 1.

¶21 Generally, choosing a penalty for employee misconduct is left to the 

agency’s discretion. Lachance v. Devall, 178 F.3d 1246, 1251-52 (Fed. Cir. 

1999). The Board lacks the authority to determine what penalty the agency 

should have selected. Instead, the Board must assess if the agency balanced the 

relevant Douglas factors7and selected a penalty that was within the “bounds of 

reasonableness.” Hayes v. Department of the Navy, 727 F.2d 1535, 1540 (Fed.

Cir. 1984). The Board will review an agency-imposed penalty only to determine 

if the agency considered all the relevant factors and exercised management 

discretion within tolerable limits of reasonableness. Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 306 (1981).

¶22 In sustaining the removal, the administrative judge noted that the deciding 

official appropriately considered all of the Douglas factors in assessing which 

penalty to impose. ID at 18. The administrative judge reviewed the 

circumstances of the four comparators, and noted that the agency r emoved two 

employees for shorter periods of AWOL than the amount of AWOL accrued by 

the appellant and gave lesser penalties to two employees who had substantially 

less AWOL than the appellant and that, as to one of those employees, he had no 

prior disciplinary record, unlike the appellant. ID at 18-19. The administrative 

judge concluded that removal was justified here, particularly given that the Board 

 

to be new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) 

(holding that evidence that is already a part of the record is not new).

7

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board 

identified factors that are relevant to consider in determining the appropriateness of a 

penalty.
12

has consistently upheld removals for absences as long as the appellant’s. ID 

at 19. We find that, because the agency considered and balanced all of the 

relevant Douglas factors, the administrative judge did not err in finding that the 

removal penalty was reasonable. Given the totality of the circumstances, we find 

that the administrative judge did not abuse his discretion in affirming the 

appellant’s removal for the sustained misconduct.

¶23 Accordingly, for the foregoing reasons, we affirm the administrative judge’s 

initial decision.

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. 

 

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.
13

(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: 

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 
14

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a. 

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

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

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

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

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

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

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

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

this decision. 

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

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

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

by a method requiring a signature, it must be addressed to: 
15

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 

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.9 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 

 

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. 
16

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. 

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