MSPB Federal Circuit Appeal: Taking Your Disability Case to Court

When the Merit Systems Protection Board rules against you on a FERS disability retirement claim, you have two paths forward: a Petition for Review to the full Board, or judicial review at the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit is the only court with jurisdiction over MSPB disability cases, and it applies a specific standard of review that limits what it can overturn — understanding that standard shapes whether an appeal makes strategic sense.

Petition for Review vs. Federal Circuit Appeal

After an Administrative Judge issues an Initial Decision, you generally have 35 calendar days to file a Petition for Review (PFR) with the full Board in Washington, D.C. If you show that you received the decision more than 5 days after it was issued, the deadline is 30 calendar days after receipt. Under 5 C.F.R. § 1201.114, the PFR is an administrative appeal. The Board may grant review under § 1201.115 for reasons including new and material evidence that was previously unavailable despite due diligence, an erroneous interpretation of statute or regulation, or material errors of fact. PFR pleadings are capped at 30 pages or 7,500 words.

If no party files a timely PFR, the AJ's Initial Decision becomes the Board's final decision. At that point — or after the full Board rules on a PFR — you have 60 calendar days under 5 U.S.C. § 7703 to petition the Federal Circuit for judicial review.

You don't have to file a PFR before going to the Federal Circuit. If the AJ's Initial Decision becomes final because neither party files a timely PFR, you can petition the Federal Circuit directly from that final decision. But if you do file a PFR, you wait for the Board's ruling before the Federal Circuit clock starts.

The Federal Circuit's Standard of Review

The Federal Circuit doesn't retry your case. Under 5 U.S.C. § 7703(c), the court reviews the administrative record to determine whether the Board's decision was:

• Arbitrary, capricious, or an abuse of discretion
• Obtained without procedures required by law, rule, or regulation
• Unsupported by substantial evidence

"Substantial evidence" means relevant evidence that a reasonable mind might accept as adequate to support a conclusion — a lower bar than "preponderance," but the court won't reweigh evidence or substitute its judgment for the Board's. Where the Federal Circuit can make a difference is on legal questions: whether the Board applied the correct legal standard, whether it properly considered all competent medical evidence, and whether it gave effect to precedent.

This is exactly what happened in Garland v. OPM (Fed. Cir. Apr. 22, 2026). The court reversed the Board's decision because OPM had failed to meet its burden of production under Bruner v. OPM — it tried to rebut the presumption of disability by simply asserting a lack of objective medical evidence, and the Federal Circuit held that wasn't enough. Subjective clinical evaluations following established diagnostic criteria must be considered.

Current Board Dynamics

The MSPB currently operates with a two-member quorum: Acting Chair Henry Kerner and Board Member James Woodruff. The Board cleared its historic backlog of 3,800+ cases from the 2017–2022 period when it lacked a quorum, but the current two-member structure creates a complication for PFRs: when one member recuses (Kerner frequently recuses from Office of Special Counsel-related matters, Woodruff from cases involving DOD or VA), the Board can't act, and the AJ's Initial Decision becomes the final decision by default.

This means your PFR might effectively be decided by the AJ's original ruling regardless of what you file. If you're considering whether to file a PFR or go straight to the Federal Circuit (after the 35-day PFR window closes), this dynamic matters.

What a Federal Circuit Appeal Costs

Federal Circuit appeals are real litigation. You'll need to prepare a brief that meets the court's formatting and page requirements, assemble the certified administrative record, and argue the case before a three-judge panel. Most appellants hire a federal employment attorney for this stage, though pro se filings are permitted.

The filing fee is modest, but attorney's fees for a Federal Circuit brief and oral argument typically run $10,000 to $25,000 or more depending on case complexity. If the court reverses and remands in your favor, you may be able to recover attorney's fees under the Equal Access to Justice Act.

When a Federal Circuit Appeal Makes Sense

A Federal Circuit appeal is strongest when the Board made a clear legal error — misapplied the Bruner presumption, ignored competent medical evidence, or applied the wrong regulatory standard. It's weakest when the dispute is purely factual (the Board weighed the evidence and found it insufficient), because the court defers to the Board's factual findings under the substantial evidence standard.

The FERS Disability Denial Appeal Guide covers the full appeal ladder from OPM reconsideration through the MSPB to the Federal Circuit, with deadline tracking for each stage and a decision framework for whether to pursue a PFR versus judicial review.

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