UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JANEL N. SMITH,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

CH-1221-22-0137-W-1

DATE: April 23, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Richard R. Renner, Esquire, Silver Spring, Maryland, for the appellant.

Elaine Fitch, Esquire, Washington, D.C., for the appellant.

Jennifer A. Weger, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the initial decision is based on an erroneous interpretation of statute or regulation

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

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

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

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

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

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

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

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

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

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

The appellant is employed as a GS-9 Investigative Analyst at the agency’s

Kansas City Field Division in Fairview Heights, Illinois. Initial Appeal File

(IAF), Tab 9 at 4. On January 17, 2022, the appellant filed the instant IRA appeal

alleging that the agency failed to provide her training and select her for a new

position in retaliation for her protected whistleblowing disclosures and activities,

and she requested a hearing on her appeal. IAF, Tab 1 at 2, 5, 8, Tab 9 at 6.

With her initial appeal, the appellant provided a copy of a Board appeal rights

letter from the Office of Special Counsel (OSC) dated November 19, 2021. IAF,

Tab 1 at 8.

The administrative judge issued a jurisdictional order in which she apprised

the appellant of the applicable law and burden of proof requirements for an IRA

appeal and ordered her to submit evidence and argument establishing Board

jurisdiction over her appeal. IAF, Tab 3. The administrative judge also directed

the appellant to file a statement detailing the specific elements of her claim. Id.

In response, the appellant provided a sworn declaration asserting that she made

2
protected disclosures, engaged in protected activity, and further described the

actions she alleged were taken in retaliation for the same. IAF, Tab 9 at 4-8. She

also included a copy of her OSC complaint. Id. at 9-29, 98-105.

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

found that the appellant exhausted her claims with OSC but failed to make a

nonfrivolous allegation that her protected disclosure or protected activity was a

contributing factor in the agency’s decision to take a personnel action against her.

IAF, Tab 14, Initial Decision (ID) at 1, 10. Specifically, she found it undisputed

that the appellant made a protected disclosure in 2010 and engaged in protected

activity when she filed a Board appeal in 2013 and a petition for review in 2015

relating to her protected disclosure. ID at 5. She also found that the agency

subjected her to a personnel action when it failed to select her for an Industry

Operations Investigator (IOI) position, but she concluded that the appellant failed

to demonstrate that her disclosure or activity was a contributing factor in the

agency’s decision to not select her for the IOI position. ID at 7-10. Therefore,

the administrative judge dismissed the appeal for lack of jurisdiction without

holding the requested hearing. ID at 1, 10.

The appellant has timely filed a petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1. The agency has filed a response in

opposition. PFR File, Tab 4. The appellant has filed a reply. PFR File, Tab 8.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before OSC and makes nonfrivolous allegations that she

made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),

and the disclosure or protected activity was a contributing factor in the agency’s

decision to take or fail to take a personnel action. Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 14; see Hessami v. Merit Systems Protection

3
Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020). The Board’s regulations define a

nonfrivolous allegation as an assertion that, if proven, could establish the matter

at issue. 5 C.F.R. § 1201.4(s). 2 The U.S. Court of Appeals for the Federal

Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation

is an allegation of “sufficient factual matter, accepted as true, to state a claim that

is plausible on its face.” Hessami, 979 F.3d at 1364, 1369. Once an appellant

establishes jurisdiction over her IRA appeal, she is entitled to a hearing on the

merits of her claim, which she must prove by preponderant evidence. Rebstock

Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 9

(2015). For the reasons discussed below, we agree with the administrative judge

that the appellant has shown that she exhausted her administrative remedies

before OSC but failed to nonfrivolously allege that her protected disclosure or

protected activity was a contributing factor in her nonselection.

The appellant exhausted her administrative remedies with OSC.

To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an

appellant must have provided OSC with a sufficient basis to pursue an

investigation into her allegations of whistleblower reprisal. Chambers,

2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through the

appellant’s initial OSC complaint, evidence the original complaint was amended

(including but not limited to OSC’s determination letter and other letters from

OSC referencing any amended allegations), and the appellant’s written responses

to OSC referencing the amended allegations. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may be proved

2

 The regulation further provides that an allegation generally will be considered

nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation

that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the

legal issues in the appeal. 5 C.F.R. § 1201.4(s). Vague, conclusory, unsupported, and

pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading

standard needed to establish the Board’s jurisdiction over an IRA appeal. El v.

Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed.

Cir. 2016).

4
through other sufficiently reliable evidence, such as an affidavit or declaration

attesting that the appellant raised with OSC the substance of the facts in her

appeal. Chambers, 2022 MSPB 8, ¶ 11.

Here, the appellant submitted her OSC complaint in which she stated that

the agency engaged in nepotism, did not select her for a position, and denied her

training in retaliation for her protected disclosure and activity. IAF, Tab 9

at 10-29. She also submitted her Board appeal rights letter wherein OSC

characterized her complaint as alleging that agency officials retaliated against her

by failing to provide her training and refusing to promote her. Id. at 106. OSC’s

correspondence also characterized her whistleblowing and protected activity as a

report that her supervisor inflated inspection numbers and harassed her as well as

her filing “an EEO complaint, an OSC complaint, a[n] MSPB appeal, a federal

tort claim, a federal case against the agency, made reports to Congress, and

appealed the MSPB’s final findings.” Id. Accordingly, we agree with the

administrative judge that the appellant exhausted her administrative remedies

before OSC.

The administrative judge correctly concluded that the appellant nonfrivolously

alleged that she made one protected disclosure under 5 U.S.C. § 2302(b)(8).

2010 Disclosure.

Protected whistleblowing occurs when an appellant makes a disclosure that

she reasonably believes evidences 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 and safety. Mason, 116 M.S.P.R. 135, ¶ 17.

The proper test for determining whether an employee had a reasonable belief that

her disclosures were protected is whether a disinterested observer with knowledge

of the essential facts known to, and readily ascertainable by, the employee could

reasonably conclude that the actions evidenced a violation of a law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id. 

5
Here, the administrative judge found it undisputed that the appellant made

a protected disclosure in 2010 regarding inflated inspection numbers. ID at 5.

The parties do not challenge this finding on review, and we discern no basis to

disturb it. To the extent that the appellant argues that the administrative judge

failed to assess her reasonable belief as to her 2010 disclosure, this was

unnecessary as the Board previously found the disclosure at issue to be a

protected disclosure within the meaning of the Whistleblower Protection Act.

Smith v. Department of Justice, MSPB Docket No. CH-1221-13-0304-W-2, Initial

Decision at 6 (Oct. 30, 2015).

Federal Lawsuit for Assault and Harassment.

The appellant alleges on review that the administrative judge erred in not

finding that her Federal lawsuit for assault and harassment was a protected

disclosure under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 14-15. Specifically,

she argues that her lawsuit “is a disclosure of a violation of law because ‘assault

and harassment’ are legally prohibited.” Id. at 15. In support of her argument,

the appellant cites the Board’s opinions in Lewis v. Department of Commerce,

101 M.S.P.R. 6 (2005), and Baldwin v. Department of Veterans Affairs,

113 M.S.P.R. 469 (2010). We are not persuaded and find that the appellant’s

reliance on these cases is misplaced.

In Lewis, the Board found that the appellant made a nonfrivolous allegation

that she disclosed a violation of law, rule, or regulation when she alleged that

she disclosed to an agency official that her department head cursed at her and

assaulted her. Lewis, 101 M.S.P.R. 6, ¶ 11. Similarly, in Baldwin, the Board

found that the appellant made a protected disclosure when he reported threats of

an assault by his coworkers to agency officials. Baldwin, 113 M.S.P.R. 469,

¶¶ 16-21. However, in this case, the appellant fails to provide any details beyond

her vague assertion that she reported to her former supervisor that she was

assaulted and filed a Federal lawsuit. IAF, Tab 9 at 104. As previously noted,

6
vague, conclusory, and pro forma allegations do not meet the nonfrivolous

allegation standard needed to establish the Board’s jurisdiction over an IRA

appeal. El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d,

663 F. App’x 921 (Fed. Cir. 2016). Accordingly, we conclude that the appellant

failed to nonfrivolously allege that she made a protected disclosure under

5 U.S.C. § 2302(b)(8) in connection with her Federal lawsuit. 

The administrative judge correctly concluded that the appellant nonfrivolously

alleged that she engaged in some protected activity under 5 U.S.C. § 2302(b)(9).

The administrative judge found it undisputed that the appellant engaged in

protected activity when she filed a Board appeal in 2013 and a petition for review

in 2015 relating to her 2010 protected whistleblower disclosure. ID at 5-6. The

parties do not dispute this finding on review, and we discern no basis to disturb it.

However, the administrative judge concluded that the appellant’s Federal

lawsuit was not a protected activity because it did not fall within the purview of

an IRA appeal. ID at 6. We agree. Section 2302(b)(9)(A) covers the protected

activities of “the exercise of any appeal, complaint, or grievance right granted by

any law, rule, or regulation – (i) with regard to remedying a violation of

paragraph (8); or (ii) other than with regard to remedying a violation of

paragraph (8).” However, the Board’s jurisdiction in an IRA appeal includes

claims arising under 5 U.S.C. § 2302(b)(9)(A)(i), but does not include claims

arising under 5 U.S.C. § 2302(b)(9)(A)(ii); thus, the appellant’s Federal lawsuit

may only be the subject of an IRA appeal if she sought therein to remedy a

violation of 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶ 7 (2013). In this case, the appellant’s Federal lawsuit was

not to remedy a violation under 5 U.S.C. § 2302(b)(8). Thus, we find that the

appellant failed to allege that she engaged in protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i) in connection with her Federal lawsuit.

The appellant also challenges the administrative judge’s finding that she

failed to nonfrivolously allege that she engaged in protected activity when she

7
alleged that she filed equal employment opportunity (EEO) complaints. PFR File,

Tab 1 at 15-18. She also argues that the administrative judge erred by not finding

that she made a protected disclosure when she filed her EEO complaints. Id.

at 16. We disagree. The Board recently reaffirmed that filing an EEO complaint

is a matter relating solely to discrimination and is not protected by 5 U.S.C.

§ 2302(b)(8). Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-13, 20,

22-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); see

Williams v. Department of Defense, 46 M.S.P.R. 549, 554 (1991). Further, there

is no indication in the record that the substance of her EEO complaints sought to

remedy a violation of 5 U.S.C. § 2302(b)(8). The appellant did not provide

copies of the EEO complaints or a detailed description of the contents of the

complaints below, and what little information she did provide about the

complaints indicates that they do not concern remedying a violation of

whistleblower reprisal under 5 U.S.C. § 2302(b)(8). Instead, the EEO complaints,

as described by the appellant, concerned violations of civil rights laws. PFR File,

Tab 1 at 16. Consequently, the administrative judge correctly determined that the

appellant has failed to nonfrivolously allege that she made a protected disclosure

or engaged in protected activity in connection with this claim.

The administrative judge correctly concluded that the appellant nonfrivolously

alleged that her nonselection constituted a personnel action, but failed to

nonfrivolously allege that the agency denied her training opportunities pursuant

to 5 U.S.C. § 2302(a)(2)(A)(ix).

As an initial matter, it is undisputed that the agency did not select the

appellant for the IOI position. IAF, Tab 9 at 113, Tab 10 at 18-19, 42. Decisions

to not promote or to not appoint an applicant, otherwise known as nonselections,

are enumerated personnel actions under 5 U.S.C. § 2302(a)(2)(A)(i)-(ii). The

administrative judge found, and the parties do not dispute on review, that the

appellant’s nonselection was a personnel action. ID at 7. We agree and discern

no basis to disturb this finding.

8
On review, the appellant challenges the administrative judge’s finding that

she did not meet her burden of nonfrivolously alleging that the agency denied her

training opportunities. PFR File, Tab 1 at 21-22; ID at 7-8. We are not

persuaded. “[A] decision concerning . . . training” is a personnel action if it “may

reasonably be expected to lead to an appointment, promotion, performance

evaluation, or other [personnel] action [as described in 5 U.S.C. § 2302(a)(2)

(A).]” 5 U.S.C. § 2302(a)(2)(A)(ix). Thus, the plain wording of the statute

explicates that not all denials of training opportunities are covered personnel

actions. Id.; see Simone v. Department of the Treasury, 105 M.S.P.R. 120, ¶ 9

(2007). Here, the appellant failed to identify any training opportunities that may

have reasonably led to an appointment, promotion, performance evaluation, or

similar action. As the administrative judge properly noted below, the appellant

“provide[d] nothing more than a few vague and conclusory statements that the

agency did not provide training.” ID at 7. Thus, we agree that she failed to

nonfrivolously allege that her alleged lack of training constitutes a personnel

action.

Regarding the appellant’s argument that the administrative judge

erroneously overlooked that the agency subjected her to other personnel actions,

including rescinding vacancy announcements to which she applied, reclassifying

her position in 2010, subjecting her to multiple background checks, posting

vacancy announcements while she was out of the office, and not selecting her for

a different position in 2018 or 2019, there is nothing in the record indicating that

she exhausted these personnel actions with OSC. PFR File, Tab 1 at 21-22.

OSC’s letter clearly identifies only the lack of training and nonselection as the

contested personnel actions, and the Board is limited to considering only those

personnel actions that the appellant raised before OSC. 3 Mason, 116 M.S.P.R.

135, ¶ 8.

3

 Although it appears that the appellant made scant references to these alleged actions

below, as previously noted, vague and conclusory statements are insufficient to

establish a nonfrivolous allegation. See El, 123 M.S.P.R. 76, ¶ 6.

9
The administrative judge correctly concluded that the appellant failed to

nonfrivolously allege that her protected disclosure or activity was a contributing

factor in the agency’s decision to take a personnel action against her.

To satisfy the contributing factor criterion at the jurisdictional stage, an

appellant need only raise a nonfrivolous allegation that the fact of, or content of,

the protected disclosure or activity was one factor that tended to affect the

personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to

establish this criterion is the knowledge/timing test, under which an employee

may nonfrivolously allege that the disclosure or activity was a contributing factor

in a personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure or activity, and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the disclosure or activity was a contributing factor in the

personnel action. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1). If an appellant fails to

satisfy the knowledge/timing test, the Board must consider other evidence, such

as that pertaining to the strength or weakness of the agency’s reasons for taking

the personnel action, whether the whistleblowing was personally directed at the

proposing or deciding official, and whether those individuals had a desire or

motive to retaliate against the appellant.

As previously noted, the appellant’s prior disclosure and protected

activities occurred between 6 and 11 years before the agency failed to select her

for the IOI position. Therefore, we agree with the administrative judge that such

a gap in time is too remote to satisfy the knowledge/timing test. See Salinas v.

Department of the Army, 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a disclosure

made 2 1⁄2 to 3 years before the relevant personnel actions was too remote for a

reasonable person to conclude the disclosure was a contributing factor to the

actions). Regarding the motive to retaliate, the record does not reflect that the

appellant’s disclosures or protected activities were personally directed at the

official who failed to select her for the position. IAF, Tab 9 at 9-29, 98-105.

10
Other than her own conclusory assertions, the appellant identifies no specific

evidence or argument that, if true, could show that the selecting official for the

position at issue had any knowledge of her protected disclosure or activities. Id.

For example, the appellant concedes that she is unaware of the selecting official

for the IOI position. Id. at 19. Therefore, we find that the appellant failed to

raise nonfrivolous allegations that she made a protected disclosure or engaged in

protected activity that was a contributing factor in the agency’s nonselection

decision. Accordingly, we dismiss the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS4

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.

4

 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.

11
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

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,

12
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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

13
(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.5 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B). 

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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

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

5

 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. 

14
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

15