The Final Decision issued by MSPB (involving all “otherwise appealable” actions such as removal or suspension of 15-days of more) may be appealed at the U.S. Court of Appeals for the Federal Circuit in Washington, DC, within 60 days after it is issued. See 5 U.S.Code § 7703(b)(1)(A). 

File Petition For Review/Notice of Appeal (Form 5) downloadable from U.S. Court of Appeals for the Federal Circuit must be submitted accompanied by the MSPB final decision with the Court fee of $600 in check of money order.

The “otherwise appealable” actions are personnel actions appealable to Merit Systems Protection Board (MSPB), such as removals, constructive discharge (forced resignation or forced retirement), forced suspension (forced leave for more than 14 days), reductions in grade or pay, suspensions of more than 14 days, furloughs for 30 days or less, denials of within-grade pay increases, reduction-in-force actions, denials of restoration or reemployment rights (such as Worker’s Compensation claim). 5 U.S. Code §§ 4311-15, 7513.

When an otherwise appealable action is raised in the initial MSPB appeal as discrimination in affirmative defense, the case becomes a “mixed case.” The Federal Circuit Court of Appeals will require you to file Fed. CIR. R. 15(c) Statement Concerning Discrimination. Federal Circuit Rules of Practice 15(c)(1) states:

Within fourteen (14) days after a petition for review of a decision of the Merit Systems Protection Board or a decision of an arbitrator under 5 U.S.C. § 7121 is docketed, the petitioner must file a statement indicating whether or not a claim of discrimination by reason of race, color, religion, sex, age, national origin, or handicapping condition has been or will be made in the case. A petitioner must file the statement on the form prescribed by the court.

If you assert that discrimination is involved in the action you are appealing (as addressed in the final MSPB decision), the Federal Circuit Court of Appeal will remand the case to the appropriate U.S. District Court. If you assert that you “wish to abandon those discrimination claims,” your appeal may proceed in Federal Circuit Court of Appeals.

That is, MSPB (“Board”)’s final decision involving a mixed case can be appealed to the Federal Circuit Court of Appeals, if the discrimination claims are abandoned; because the Federal Circuit Court of Appeals lacks jurisdiction to review Board’s final decision with respect to the claims of discrimination.  If the EEO claims are not abandoned, the entire appeal will be dismissed by the Federal Circuit Court of Appeals (for lack of jurisdiction) and will be referred to U.S. District Court.

The actions addressed in the MSPB final decision in a mixed case can be split, however, and can be appealed to the Federal Circuit Court of Appeals, on one hand, by abandoning claims of discrimination—only to address actions involving performance issues (in Chapter 43 appeals dealing with performance standards and implementations) or conduct issues (in Chapter 75 appeals dealing with Douglas Factors such as progressive disciplinary actions, severity of penalty, rehabilitation potential, etc.). See 5 U.S.C. § 7703(b)(1)). But the EEO claims that are abandoned at the Federal Circuit Court of Appeals, on the other hand, may be “reviewed” by U.S. District Court de novo (from the start). See 5 U.S. Code § 7703(b)(2).

In other words, the MSPB final decision involving a mixed case can be appealed to Federal Circuit Court of Appeals (within 60 days, only on non-discrimination claims) and requested to be reviewed by U.S. District Court (on EEO claims only).

In this incidence, one can file a Complaint for de novo judicial review by U.S. District Court within the appropriate jurisdictional region. In the Complaint one should specify that a judicial review of the Board’s decision is sought on the EEO issues only.

In short, if MSPB final decision involving a mixed case is not split, it can be appealed either with Federal Circuit Court of Appeals (by abandoning the EEO component—within 60 days of issuance) or with U.S. District Court (only on the EEO component—within 30 days of issuance), not both.

Note: The “otherwise appealable action” appeals should be distinguished from the Individual Right of Actions (IRA) appeal actions.

IRA appeals involve whistleblower retaliation claims such as warning, lowering performance evaluation, reprimand, suspension less than 15 days or suspension of 15-days or more, denied leave, non selection for hire, non selection for promotion, denied transfer, denied bonus, etc.). All these actions can be appealed with MSPB as retaliation for prior whistleblower activity—provided that you had already reported these actions as retaliatory (for blowing whistles) at the Office of Special Counsel (OSC).

MSPB becomes the Appellee only when Board’s final decision pending review solely addresses Board’s jurisdiction and refuses to address the merits of the underlying case. 5 U.S.C. § 7703(a)(2). Otherwise, the federal agency is designated as the Appellee or Respondent at the Federal Circuit Court of Appeals.

Once a Petition for Review/Notice of Appeal (Form 5) with Notice of Unrepresented Person (Form 8B) is filed with the Clerk’s Office of Federal Circuit Court of Appeals in Washington DC (with the processing fee of $600 (subject to change), payable to: “Clerk, Federal Circuit Court of Appeals”), the Clerk will issue Notice of Docketing, indicating the appeal case number. In the Notice of Docketing, MSPB will be ordered to forward the “certified list” with all relevant MSPB files from the Initial Appeal and the Petition For Review (PFR) proceedings (if PFR is filed).

As already stated, within 14 days of filing Petition for Review, Appellant must file a Statement Concerning Discrimination (Form 10) and Notice of Unrepresented Person (Form 8B) or, if represented, a Representation Statement (by attorney).

DEADLINES and FORMAL BRIEF REQUIREMENTS

Once the certified list or index is filed by Appellee (as Appellant will be notified of this), Appellant must file its opening brief within 60 days after the certified list or index is served to the Court, pursuant to Federal Circuit Rule 17(c).

• The opening brief may not exceed 30-page limits or 14,000 words (including headings, footnotes, and quotations) in font size 14.

• Cover page must contain the following items:

  • Appeal Case Number (as identified by the Notice of Docketing).

  • Name of the Court: “U. S. Court of Appeals for the Federal Circuit.”

  • Formal Caption (as identified by the Notice of Docketing).

  • Nature of Proceeding and Name of Underlying Court: “Appealing MSPB final decision on MSPB case number ___________ in the matter of ______ vs. ______,” or “______ vs. MSPB” (if the final MSPB decision is solely on jurisdictional question and has no discussion on the merits of the case, in which case the Respondent becomes MSPB, not the federal agency).

  • Brief Title: “Appellant’s Opening Brief.”

  • Party Filer: “Pro Se” or the attorney name and contact information.

    See Cover Page template.

• Certificate of Interest (Form 9).

• Table of Contents.

• Table of Authorities.

• Statement of Related Cases (if any).

• Jurisdictional Statement.

• Statement of the Issues.

• Statement of the Case and Facts.

• Summary of the Argument.

• Argument.

• Statement of Review (this must appear with its own heading either with the argument section or immediately preceding the argument section).

• Conclusion and Relief Sought.

• Addendum Containing Opinions, Orders, Judgments Appealed (these documents from MSPB should be attached to the brief as “Addendum”).

• Other Addenda (if required such as exhibits, attachments not already part of MSPB files).

• Proof of Service (if not filed by electronic Case File system - see Form 30).

  
  

  See the Formal Brief Requirements issued by Federal Circuit Court of Appeals. Also see Briefs and Appendix Requirements.

Within 40 days of receipt, a Response brief must be filed by Appellee. Appellant may file a Reply brief thereafter.

Avoid using “Appellant” and “Appellee” in the brief. Instead, use actual names or the designation used by the Board. F. R. A. P. 28(d).

File date is the date of mail or dispatch to a third-party commercial carrier for delivery to the Clerk’s Office within 3 days. Federal Rule of Appellate Procedure 25(a)(2)(A)(ii).

The Clerk’s Office reviews and notifies deficiencies in submitted briefs, if any. The deadline continues to run for Appellee, even if the opening brief is found deficient.

See Court’s “Briefs & Appendices,” Federal Circuit Rule 25(c)(4), and “Clerk’s Office’s Revised Document Compliance Review Procedure.”

All submissions can be filed via Court’s Electronic Case File (ECF) system or paper copies can be submitted to:

Clerk of Court

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, N.W.

Washigton, DC 20439.