Petition for Review MSPB Disability Retirement: After an Unfavorable Initial Decision

The Administrative Judge issued an Initial Decision against you. The decision generally becomes final and binding after 35 calendar days unless you file a Petition for Review with the full Board; if you can show you received it more than 5 days after issuance, you have 30 days from receipt to file. Filing a PFR is the last administrative step before judicial review, and the Board applies a high standard — you can't simply argue that the AJ got it wrong.

Filing the Petition for Review

Submit your PFR to the Clerk of the Board, MSPB, 1615 M Street NW, Washington, DC 20419, or through the e-Appeal Online system. The deadline is 35 calendar days from the date the AJ issues the Initial Decision. If you can show you received it more than 5 days after issuance, you have 30 days from receipt to file. PFR pleadings are limited to 30 pages or 7,500 words, whichever comes first.

The Standard for Granting Review

Under 5 CFR 1201.115, grounds for a PFR include, but are not limited to:

1. The AJ made a material factual error. Explain why the finding is wrong and identify the evidence in the record that shows the error.
2. The AJ misinterpreted a statute or regulation or misapplied the law to the facts. Misapplying the Bruner burden-of-production framework or Garland where its holding applies may qualify.
3. The AJ's rulings failed to follow required procedures or involved an abuse of discretion, and the resulting error affected the outcome.
4. New and material evidence or legal argument became available after the record closed, despite your due diligence.

The Board does not simply re-weigh evidence or substitute its judgment for the AJ's on factual questions. If you're arguing that the AJ reached the wrong conclusion from the evidence, identify a material factual error and point to the record evidence that shows it. If you're arguing the AJ applied the wrong legal standard — for example, treating a lack of objective medical evidence alone as enough for OPM to rebut the Bruner presumption, contrary to Garland v. OPM — the PFR has stronger footing.

Current Board Composition and the Recusal Problem

The Board currently consists of Chairman James Woodruff and Vice Chairman Henry Kerner. Woodruff's appointment as a Board member restored its quorum in October 2025. Issuing a decision requires agreement of at least two non-recused members.

Both members carry significant recusal obligations from their prior government service. Kerner frequently recuses himself from cases linked to the Office of Special Counsel. Woodruff recuses himself from matters involving former employing agencies, including the Department of Defense and Veterans Affairs. In nearly 40% of pending PFRs where a recusal occurs, the Board lacks the two members needed for a quorum. When the Board cannot act, the AJ's Initial Decision automatically becomes the final agency decision by operation of law.

This means your PFR may result in the Initial Decision standing — not because the Board considered and rejected your arguments, but because recusals prevented the Board from reaching your case at all.

Beyond the Board: Federal Circuit Review

If the Board issues a final decision against you, or if the AJ's Initial Decision becomes final without a PFR, you can petition the U.S. Court of Appeals for the Federal Circuit within 60 calendar days. The Federal Circuit reviews whether the Board's decision was arbitrary, capricious, an abuse of discretion, obtained without required procedures, or unsupported by substantial evidence.

This is judicial review, not another administrative appeal — you'll need to evaluate whether the legal issues in your case warrant the cost and complexity of federal appellate litigation.

The FERS Disability Denial Appeal Guide covers PFR drafting frameworks, the current Board composition, and the analysis for deciding between a PFR and a direct Federal Circuit petition.

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