UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES THOMAS RYAN,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-1221-16-0264-W-1

DATE: May 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

James Thomas Ryan, Bel Air, Maryland, pro se.

Elizabeth E. Pavlick, Esquire, and Kevin Greenfield, Esquire, Washington, 

D.C., for the agency.

Emilee Collier, Esquire, Washington, D.C., for amicus curiae, Office of 

Special Counsel

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 in this 

individual right of action (IRA) appeal, which denied his request for corrective 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED by 

this Final Order to find that the appellant made protected disclosures, we 

AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant, a Police Officer with the Pentagon Force Protection Agency, 

alleged in this IRA appeal that the agency improperly maintained several closed 

records of investigations (ROIs) involving him, which he claims represented a 

threat of discipline, in reprisal for several alleged protected disclosures, and in 

reprisal for activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (b)(9)(C). 

Initial Appeal File (IAF), Tabs 1, 5, Tab 83 at 5. The administrative judge found 

jurisdiction over the appeal and, after holding a hearing, denied the appellant’s 

request for corrective action, finding, among other things, that the appellant failed 

to meet his burden to establish by preponderant evidence that he made a protected 

disclosure. IAF, Tab 115, Initial Decision (ID) at 1, 7-12. 

¶3 Concerning those alleged protected disclosures, the administrative judge 

found that a reasonable person in the appellant’s position would not believe that 
3

any of the disclosures alleged here evidenced a violation of law, rule, or 

regulation, gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health or safety. ID at 7-12. As 

iterated by the administrative judge, the appellant’s disclosures included: (1) his 

December 24, 2014 email that a coworker was sleeping on the job and that 

another coworker had threatened to stab that coworker in the eye, IAF, Tab 82 

at 7; (2) his December 24, 2014 email that a third coworker allegedly had failed 

to clear an alarm and his memorandum of the same day reporting that the same 

colleague had commented that “every time a law enforcement officer encounters 

an African-American, they kill him,” and that such a statement jeopardizes her 

security clearance and that she should not have access to sensitive security 

information, IAF, Tab 42 at 7-8; (3) his December 26, 2014 memorandum and 

subsequent email concerning his supervisor’s statement that the appellant 

reportedly was not performing all of his duties, IAF, Tab 14 at 77, 79; and (4) his 

January 6, 2015 email and memorandum complaining that a coworker had been 

discourteous to him, id. at 81, 116; ID at 3-5. 

¶4 Although the administrative judge did find that the appellant established 

that he had engaged in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and 

2302(b)(9)(C) by filing IRA appeals and complaints with the Office of Special 

Counsel (OSC), she went on to find that the appellant failed to show that this 

alleged protected activity contributed to any decision to retain the closed ROIs, 

citing testimony that such documents are usually retained indefinitely and the 

appellant’s failure to introduce any evidence to show that the individuals 

responsible for retaining such documents had any knowledge of his alleged 

protected activity. ID at 12-13. She also found that the agency’s decision to 

maintain the ROIs was not a personnel action under 5 U.S.C. § 2302(a)(2)(A) and 

did not constitute a threat of reprisal, citing less-than-preponderant evidence that 

the ROIs either could or should have been destroyed and, as noted above, the lack 

of any connection between the appellant’s alleged protected activity and any
4

possible decision concerning the retention of the ROIs. ID at 15. Thus, she 

found that the indirect risk of future discipline based on the content of the ROIs is 

not a threat of discipline that would exempt these circumstances from the general 

rule that an investigation, in and of itself, is not a personnel action under 5 U.S.C. 

§ 2302(a)(2)(A). Id. 

¶5 In his petition for review, the appellant contests many of the administrative 

judge’s factual findings, for example, challenging her characterization of him as 

argumentative during one of the episodes at issue in this appeal and instead 

insisting that he had “merely informed” the acting floor supervisor that h e was 

following orders from his supervisor. Petition for Review (PFR) File, Tab 1 

at 5-8. He also challenges the administrative judge’s finding that his disclosure

involving a coworker sleeping on duty and a purported stabbing threat was 

motivated by interpersonal squabbling, rather than a desire to disclose significant 

Government wrongdoing, and argues that his disclosure reasonably showed a 

violation of a rule. Id. at 8, 11-12, 16-17; ID at 8. He offers what he describes as 

new evidence regarding that disclosure, claiming that the evidence was not 

available before the hearing because the administrative judge never asked him 

about the full circumstances of the episodes and improperly restricted his hearing

testimony. PFR File, Tab 1 at 11-15. The appellant argues that several agency 

witnesses made false statements, explains why he believes that the administrative 

judge should have considered whether his supervisor perceived him to be a 

whistleblower, and essentially reargues his case. Id. at 9-11, 15-24. 

¶6 The agency responded in opposition to the appellant’s petition for review,

and the appellant filed a reply to the agency’s response. PFR File, Tabs 3-4. 

Additionally, OSC filed a brief as amicus curiae, asserting that the administrative 

judge erred in considering the appellant’s motivation in making one of his 

disclosures. PFR File, Tab 5. OSC observes that under 5 U.S.C. § 2302(f)(1)(C), 

“[a] disclosure shall not be excluded from subsection (b)(8) because . . . of the 

employee’s or applicant’s motive for making the disclosure,” and asks the Board 
5

to reaffirm that a whistleblower’s motive does not affect whether a disclosure is 

protected. Id. at 5-9. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 When reviewing the merits of an IRA appeal, 2the Board must determine 

whether the appellant has established by preponderant evidence that he made a 

protected disclosure that was a contributing factor in the agency’s decision to take 

or fail to take a personnel action. E.g., Aquino v. Department of Homeland 

Security, 121 M.S.P.R. 35, ¶ 10 (2014). A preponderance of the evidence is the 

degree of relevant evidence that a reasonable person, considering the record as a 

whole, would accept as sufficient to find that a contested fact is more likely to be 

true than untrue. Id.; 5 C.F.R. § 1201.4(q). If the appellant meets that burden, 

the Board must order corrective action unless the agency can establish by clear 

and convincing evidence that it would have taken the same personnel action in the 

absence of the disclosure. Aquino, 121 M.S.P.R. 35, ¶ 10.

The appellant established that he made protected disclosures.

¶8 The administrative judge found that the appellant’s disclosures that he 

observed a coworker sleeping on duty and overheard another coworker

threatening to stab the first coworker in the eye with a pen were not protected, in 

part because the appellant was motivated to get back at the coworkers involved 

for a perceived slight, rather than by whistleblowing. ID at 8. In its amicus brief, 

OSC correctly points out that the whistleblower statute specifically excludes 

considering the motivation of the individual making a disclosure. 5 U.S.C. 

§ 2302(f)(1)(C); PFR File, Tab 5 at 5-6. Thus, the administrative judge erred in 

considering the appellant’s motivation, and we hereby modify that finding. See, 

e.g., Johnson v. Department of Defense, 87 M.S.P.R. 454, ¶ 10 (2000) (rejecting 

 

2

The administrative judge found that the appellant established jurisdiction ove r this

IRA appeal. ID at 1. Neither party challenges this finding in a petition for review or 

cross petition for review, and we discern no basis to disturb it. 
6

an administrative judge’s finding that an employee did not have a reasonable 

belief because her activity was motivated by troublemaking). We also agree with 

the appellant that a reasonable person in the appellant’s position would believe 

that his December 24, 2014 email concerning his observation of a coworker

sleeping on duty evidenced a violation of a rule or regulation. PFR File, Tab 1 at 

16-17; see Horton v. Department of the Navy, 66 F.3d 279, 281-83 (Fed. Cir. 

1995) (finding protected a disclosure that employees were sleeping on the job), 

superseded by statute on other grounds as stated in Day v. Department of 

Homeland Security, 119 M.S.P.R. 589, ¶¶ 14-18 (2013); 5 C.F.R. § 2635.705(a) 

(requiring Federal employees to use official time in an honest effort to perform 

official duties). The administrative judge erred in finding otherwise, and we find 

that this was a protected disclosure.

¶9 The administrative judge also found that the appellant failed to show that 

his disclosure that another coworker threatened to stab a coworker in the eye with 

a pen was protected. The administrative judge observed that the appellant 

described the so-called threat as “apparent empty bragging” and that the appellant 

did not believe that the coworker was actually intending to stab the other 

coworker. The administrative judge concluded that a reasonable law enforcement 

officer in the appellant’s position could not have believed that the threat of 

violence constituted a criminal assault. ID at 9. Although the administrative 

judge correctly found that the appellant did not hold a reasonable belief that 

violence was imminent, we nonetheless find that this disclosure was protected. 

As the appellant stated in his petition for review, he thought it constituted 

“threatening behavior” toward another Federal employee and that such behavior 

constituted a violation of an agency rule. Although the Whistleblower Protection 

Act does not define “rule,” it includes established or authoritative standards for 

conduct or behavior. See Rusin v. Department of the Treasury, 92 M.S.P.R. 298, 

¶¶ 15-17 (2002). Moreover, in making a disclosure involving a violation of law, 

rule, or regulation, there is no de minimis exception for disclosures falling within 
7

the scope of 5 U.S.C. § 2302(b)(8)(A)(i). See Fisher v. Environmental Protection 

Agency, 108 M.S.P.R. 296, ¶ 9 (2008); PFR File, Tab 1 at 15. Under the facts and 

circumstances of this case, disclosing a threat of violence constituted a protec ted 

disclosure.

¶10 Concerning the appellant’s remaining alleged disclosures, we agree with the 

administrative judge that the appellant failed to establish that a reasonable person 

would believe that his December 24, 2014 disclosure concerning a coworker’s 

response to an alarm disclosed a violation of law, rule, or regulation, gross 

mismanagement, abuse of authority, or a gross waste of funds. ID at 10. The 

appellant identified no authority prescribing a particular rule or protocol, and, 

under these circumstances, we find that this is a dispute over policy and 

procedure rather than a protected disclosure. See Webb v. Department of the 

Interior, 122 M.S.P.R. 248, ¶¶ 7-10 (2015) (holding that a disclosure of a policy 

disagreement that does not evidence the kind of misconduct listed in sec tion 

2302(b)(8) is not protected). We also agree with the administrative judge that the 

appellant’s email purportedly disclosing the same coworker’s opinion regarding 

law enforcement officers killing African-Americans was not a protected

disclosure. ID at 10-11. The appellant’s conclusory assertion that his coworker’s

opinion on the issue should jeopardize her security clearance is not a protected 

disclosure. Similarly, we agree that a reasonable person would not believe that 

the appellant’s purported disclosures of December 26, 2014, and January 6, 2015, 

which we find concern his personal interactions with his coworkers, represented a 

violation of law, rule, or regulation, gross mismanagement, abuse of authority, or 

a gross waste of funds. ID at 11-12. 

¶11 Thus, we find the appellant made protected disclosures concerning his 

coworker sleeping on duty and a coworker threatening to stab another coworker 

in the eye with a pen, and we agree with the administrative judge’s finding that 

the appellant engaged in activity protected under 5 U.S.C. §§ 2302(b)(9)(A)(i) 
8

and (b)(9)(C) when he filed IRA appeals and OSC complaints that motivated 

some of the investigations at issue in this appeal. ID at 12-13 & n.14. 

The appellant failed to identify a personnel action that the agency took in reprisal 

for his protected activity.

¶12 As noted above, the administrative judge found that the appellant failed to 

show that his protected activity contributed to any personnel action as described 

in section 2302(a)(2)(A). ID at 13-15. Indeed, she found no agency actions other 

than the investigations themselves, which she properly noted are not generally 

found to be personnel actions. ID at 14; see Sistek v. Department of Veterans 

Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020); Mattil v. Department of State, 

118 M.S.P.R. 662, ¶ 21 (2012). Although it is proper to consider evidence 

regarding an investigation if it is so closely related to an alleged personnel action 

that it would have been a pretext for gathering information to retaliate for 

whistleblowing, see Skarada v. Department of Veterans Affairs, 2022 MSPB 17, 

¶ 18 n.4; Mattil, 118 M.S.P.R. 662, ¶ 21, here, we agree with the administrative 

judge that the appellant failed to show by preponderant evidence that his 

protected whistleblowing activity was a contributing factor in the agency’s 

decision to take or fail to take any personnel action against him, ID at 14-16. 

¶13 The appellant alleged here that the personnel action at issue is the agency’s 

maintenance of the ROIs and the threat of discipline he contends that they 

represent. IAF, Tabs 1, 5, Tab 83 at 5. There is no other personnel action for 

which the investigations could have been a pretext. Moreover, the record fails to 

establish with any specificity the contours of the agency’s policy on the retention 

of ROIs. ID at 15. Because there is nothing to indicate that the agency did 

anything inconsistent with its normal document retention protocol, the appellant 

failed to establish that the agency is improperly retaining the ROIs, much less 

that it is doing so in reprisal against him. Furthermore, the appellant established 

no connection between his protected activity and the officials in the agency’s

Office of Professional Responsibility who retain authority over the ROIs. ID at 
9

15. There is no evidence in the record to suggest that the agency’s decision 

regarding the retention of the ROIs was in any way affected by the appellant’s 

protected activity. We find that the appellant failed to establish that the agency 

took, or failed to take, a personnel action against him concerning the ROIs. 

Absent an underlying personnel action, we find that the appellant has not shown 

that the agency’s investigations were a pretext for retaliation and therefore he has 

not shown that the investigations themselves constituted personnel actions. 

Skarada, 2022 MSPB 17, ¶ 18 n.4. Because the appellant failed to establish that 

the agency took or failed to take a personnel action under 5 U.S.C. 

§ 2302(a)(2)(A), he has failed to make a prima facie case, and we therefore agree 

with the administrative judge’s denial of the appellant’s request for corrective 

action. E.g., Aquino, 121 M.S.P.R. 35, ¶ 10; see Wadhwa v. Department of 

Veterans Affairs, 111 M.S.P.R. 26, ¶ 9, aff’d, 353 F. App’x 434 (Fed. Cir. 2009), 

overruled on other grounds by Hau v. Department of Homeland Security, 

123 M.S.P.R. 620, ¶ 16 (2016), aff’d sub nom. Bryant v. Merit Systems Protection 

Board, 878 F.3d 1320 (Fed. Cir. 2017). 

¶14 Lastly, the appellant argues that the administrative judge erroneously 

limited the issues adjudicated in the appeal. PFR File, Tab 1 at 21-24. Based on 

the appellant’s submissions, the administrative judge iterated the issues, as set 

forth above, in her prehearing conference summary. IAF, Tab 83 at 5. The 

appellant subsequently submitted a list of objections to the prehearing conference 

summary, and the administrative judge granted his motion to reconsider her 

denial of two of his witnesses, but he did not specifically contest the 

administrative judge’s summary of the issues. IAF, Tabs 87-88. An issue is not

properly before the Board when it is not included in the administrative judge’s 

memorandum summarizing the prehearing conference, which states that no other 

issues will be considered, unless either party objects to the exclusion of that issue 

in the summary. Crowe v. Small Business Administration, 53 M.S.P.R. 631, 

634-35 (1992). The administrative judge afforded the parties 5 days to lodge 
10

their objections to the prehearing conference summary, IAF, Tab 83 at 8, and the 

record reflects that the appellant failed to do so concerning the issues set forth 

therein. 

¶15 The appellant also asserts that the administrative judge should have 

considered whether the agency perceived him as a whistleblower. PFR File, 

Tab 1 at 22. In that regard, he also contends that the agency “failed to act on the 

evidence [he] presented in an effort to discredit [him] because they perceived the 

information as a protected disclosure.” Id. at 19. When an appellant argues that 

an agency perceived him as a whistleblower, the Board analyzes the question of 

whether the appellant made a protected disclosure in a different fashion, asking 

whether agency officials believed that the appellant made or intended to make a 

disclosure, not whether the appellant reasonably believed he made a protected 

disclosure. E.g., King v. Department of the Army, 116 M.S.P.R. 689, ¶ 8 (2011). 

In such a case, whether the appellant actually made a protected disclosure is 

immaterial, and the issue of whether the agency perceived him as a whistleblower 

essentially stands in for that portion of the analysis. Id. Nevertheless, such 

analysis has no effect on the other issues in the IRA appeal. Id., ¶ 9. Even if the 

appellant could establish that the agency perceived him as a whistleblower, it 

would not change our determination that he failed to establish that the agency 

took or failed to take a personnel action under 5 U.S.C. § 2302(a)(2)(A) in 

reprisal for his protected activity. ID at 14-15. 

¶16 Moreover, rather than identify the other issues that the administrative judge 

allegedly should have adjudicated, the appellant instead reargues the episode in 

which one of his coworkers threatened to stab the other with a pen. PFR File ,

Tab 1 at 22-24. He contends that the administrative judge improperly limited his 

testimony on the issue and implies that she was biased against him. Id. at 22. We 

disagree. Our review of the transcript indicates that the administrative judge 

instead sought to assist the appellant, who was pro se in this matter, with his 

direct testimony on the issue by asking him questions. Hearing Transcript, 
11

Apr. 28, 2016, at 11-12, 18-22. In making a claim of bias or prejudice against an 

administrative judge, a party must overcome the presumption of honesty and 

integrity that accompanies administrative adjudicators. Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980). In addition, an administrative 

judge’s conduct during the course of a Board proceeding warrants a new 

adjudication only if the administrative judge’s comments or actions evidence “a 

deep-seated favoritism or antagonism that would make fair judgment impossible.” 

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) 

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here, the appellant 

fails to overcome the presumption, and the record does not indicate that any of 

the administrative judge’s actions evidence such favoritism. 

¶17 Accordingly, we affirm the decision as modified herein. 

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation an d 

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 

 

3

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

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

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

within 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: 

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. 
13

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

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

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

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

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

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

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

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

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

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

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: 
14

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 

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.4The 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). 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
15

If you 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. 

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