The Board normally will consider only issues raised in a timely filed petition for review. Situations in which the Board may grant a petition for review include, but are not limited to, a showing that:
(a) The initial decision contains erroneous findings of material fact.
(1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision.
(2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing.
(b) 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 petitioner must explain how the error affected the outcome of the case.
(c) The 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.
(d) New and material evidence or legal argument is available that, despite the petitioner's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed.
(e) Notwithstanding the above provisions in this section, the Board reserves the authority to consider any issue in an appeal before it.
[77 FR 62369, Oct. 12, 2012, as amended at 89 FR 72963, Sept. 9, 2024]
Notes of Decisions
Gary Thurman v. United States Postal Serv., 2022 MSPB 21 (MSPB 2022).
· cites it 3× “See 5 C.F.R. § 1201.115 (d). ¶8 Regarding the appellant’s argument that the agency used his history of filing grievances and discrimination complaints to show that he “must have made the threats as alleged,” the appellant similarly did not make this argument before the…”
Todd R. Haebe v. Dep't of Just., 288 F.3d 1288 (Fed. Cir. 2002).
· cites it 2× “After an initial decision by an administrative judge, parties who desire additional review invoke a petition for review under 5 C.F.R. § 1201.115 (d), which provides: (d) The Board, after providing the other parties with an opportunity to respond, may grant a petition for review…”
Joann Azarkhish v. Off. of Pers. Mgmt., 915 F.2d 675 (Fed. Cir. 1990).
· cites it 7× “The Board’s regulations address review of initial decisions at 5 C.F.R. § 1201.115 (c) (1990) and 5 C.F.”
Jacinto S. Pinat v. Off. of Pers. Mgmt., 931 F.2d 1544 (Fed. Cir. 1991).
· cites it 2× “On February 8, 1990, the Board denied the petition because it failed to meet the criteria set forth in 5 C.F.R. § 1201.115 (1990) 1 and denied the request for additional time because petitioner failed to show good cause.”
Arthur Fisher v. Dep't of the Interior, 2023 MSPB 11 (MSPB 2023).
· cites it 2× “After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under 5 C.F.R. § 1201.115 for granting the petition for review.”
Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023).
· cites it 2× “211 , 214 (1980); 5 C.F.R. § 1201.115 (d). Regarding the sworn statements submitted with the petition for review, although the statements themselves are dated after the close of the record below, the appellant has not shown that the information contained in the documents, not…”
Mikhail Semenov v. Dep't of Vets. Affairs, 2023 MSPB 16 (MSPB 2023).
· cites it 2× “3 (1996) (recognizing that both administrative judges and the Board have, sua sponte, refused to turn a blind eye to clear e rror that affected an appellant’s rights)); 5 C.F.R. § 1201.115 (e) (reserving to the Board the authority to consider any issue in an appeal before it).”
Dwyne Chambers v. Dep't of Homeland Sec., 2022 MSPB 8 (MSPB 2022).
“2 Although the appellant’s one-line petition for review does not meet the Board’s criteria for review, see 5 C.F.R. § 1201.115 , the issue of the Board’s jurisdiction is always before the Board and may be raised sua sponte by the Board at any time, see Ney v.”
Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328 (Fed. Cir. 2008).
· cites it 2× “Parrott’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115 (d). Parrott v. Dep’t of Homeland Sec.”
— 5 C.F.R. § 1201.115(a) — 2 cases
— 5 C.F.R. § 1201.115(c)(1) — 1 case
— 5 C.F.R. § 1201.115(d) — 5 cases
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.