UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KIM ANNE FARRINGTON,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

AT-1221-09-0543-B-2

DATE: March 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford, 

Oregon, for the appellant.

Elizabeth J. Head, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied corrective action in this individual right of action appeal. On petition for 

review, the appellant makes the following arguments: (1) the statute at 5 U.S.C. 

§ 2302(f)(2) does not apply to her because her disclosures were not made in the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

normal course of her duties; (2) she proved that her disclosures were a 

contributing factor in the agency’s decision to take various personnel actions 

against her; (3) the agency abandoned its laches defense and the administrative 

judge erred in her analysis of this issue; and (4) she was prejudiced by the 

administrative judge’s delay in issuing the initial decision and her credibility 

determinations were erroneous. Farrington v. Department of Transportation, 

MSPB Docket No. AT-1221-09-0543-B-2, Petition for Review (PFR) File, 

Tab 27. Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fa ct; 

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). 

¶2 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. We MODIFY 

the initial decision to find that 5 U.S.C. § 2302(f)(2) applies to this matter

because the appellant’s disclosures were made in the normal course of her duties. 

We VACATE the administrative judge’s findings regarding laches and the 

agency’s burden to prove by clear and convincing evidence that it would have 

taken the actions absent the appellant’s whistleblowing disclosures. Except as 

expressly modified herein, we AFFIRM the initial decision.2

 

2

The Association of Flight Attendants-Communications Workers of America requested 

leave to file an amicus curiae brief in support of the appellant. PFR File, Tab 16. The

Board, in its discretion, may grant such a request if the organization has a legitimate 
3

The statute at 5 U.S.C. § 2302(f)(2) applies to this appeal because the appellant 

made her disclosures in the normal course of her duties, and we agree with the 

administrative judge that the appellant did not prove that the agency took the 

personnel actions against her in reprisal for her disclosures.

¶3 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an 

appellant may establish a prima facie case of retaliation for whistleblowing 

disclosures and/or protected activity by proving by preponderant evidence that 

(1) she made a 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),3

and (2) the whistleblowing disclosure or protected activity was a contributing 

factor in the agency’s decision to take, fail to take, or threaten to take or fail to 

take, a personnel action against her. 5 U.S.C. § 1221(e)(1); Webb v. Department 

of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant makes out a prima 

facie case, the agency is given an opportunity to prove, by clear and convincing 

evidence, that it would have taken the same personnel action in the absence of the 

whistleblowing disclosure(s). 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248, 

¶ 6.

¶4 Prior to the WPEA’s enactment, disclosures made in the normal course of 

an employee’s duties were not protected. Salazar v. Department of Veterans 

Affairs, 2022 MSPB 42, ¶¶ 10-12. However, under a provision of the WPEA 

codified as 5 U.S.C. § 2302(f)(2), such disclosures are protected if the appellant 

shows that the agency took a personnel action “in reprisal for” the disclosures. 

 

interest in the proceedings, and such participation will not unduly delay the outcome 

and may contribute materially to the proper disposition thereof. 5 C.F.R. 

§ 1201.34(e)(3). We find that an amicus curiae brief from the Association of Flight 

Attendants will not materially contribute to the proper disposition of this matter, and we 

deny its request. 

On December 30, 2022, the appellant filed a motion for leave to file a new pleading, 

which appears to be a request to expedite processing of this matter. PFR File, Tab 44. 

Because this order is a final decision in this matter, we deny the appellant’s motion.

3

This appeal does not involve protected activity as set forth in 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D).
4

Id., ¶ 10 (citing 5 U.S.C. § 2302(f)(2)). This provision imposed an “extra proof 

requirement” for these types of disclosures such that an appellant to whom 

5 U.S.C. § 2302(f)(2) applies must prove by preponderant evidence that the 

agency took a personnel action because of the disclosure and did so with an

improper, retaliatory motive. Id., ¶ 11 (discussing S. Rep. No. 112-155, at 5-6 

(2012)).

¶5 The National Defense Authorization Act for Fiscal Year 2018 (2018 

NDAA), signed into law on December 12, 2017, amended 5 U.S.C. § 2302(f)(2) 

to provide that disclosures “made during the normal course of duties of an 

employee, the principal job function of whom is to regularly investigate and 

disclose wrongdoing,” are protected if the employee demonstrates that the agency 

“took, failed to take, or threatened to take or fail to take a personnel action” with 

respect to that employee in reprisal for the disclosure. Salazar, 2022 MSPB 42, 

¶¶ 13-14; Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). 

As we held in Salazar, 2022 MSPB 42, ¶¶ 15-21, the 2018 NDAA’s amendment 

to 5 U.S.C. § 2302(f)(2), which clarified the prior version of that statute enacted 

in the WPEA, applies retroactively to appeals pending at the time the statute was 

enacted.

¶6 The administrative judge found that the appellant, as an Aviation Safety 

Inspector who was responsible for ensuring compliance with Federal Aviation 

Administration regulations and investigating and reporting wrongdoing, was 

covered by 5 U.S.C. § 2302(f)(2). Farrington v. Department of Transportation, 

MSPB Docket No. AT-1221-09-0543-B-2, Remand File, Tab 38, Initial Decision 

(ID) at 13-14, 17. The administrative judge, in analyzing the “extra proof 

requirement” regarding each personnel action, appears to have implicitly found 

that each of the appellant’s four disclosures were made during the normal course 

of her duties. ID at 29-40. On review, the appellant contends that the case is 

governed by the Board’s earlier decision in Farrington v. Department of 

Transportation, 118 M.S.P.R. 331 (2012), and its finding that “there was no duty 
5

speech.” PFR File, Tab 27 at 26. We supplement the initial decision to explicitly 

find that the appellant made her disclosures in the normal course of her duties.

¶7 In its earlier decision, the Board relied on the appellant’s position 

description and concluded that she failed to make a nonfrivolous allegation that 

her disclosures to the National Transportation Safety Board (NTSB) were not 

made within her normal job duties within the normal channels of reporting. 

Farrington, 118 M.S.P.R. 331, ¶ 9. The appellant’s position description stated 

that, as part of her surveillance duties and responsibilities, she is expected to 

“conduct investigations of . . . aircraft incidents and accidents” and to 

“[p]articipate[] in cabin safety related incident/accident investigations of air 

carriers and air operators.” Farrington v. Department of Transportation, MSPB 

Docket No. AT-1221-09-0543-W-1, Initial Appeal File (IAF), Tab 19, Subtab B 

at 1-2. The NTSB is an independent Federal agency charged with “investigating 

every civil aviation accident in the United States,” it determines the probable 

cause of accidents, and it issues safety recommendations aimed at preventing 

future accidents. National Transportation Safety Board, About the NTSB, 

https://www.ntsb.gov/about/pages/default.aspx (last visited Mar. 14, 2023). The 

appellant provided the head of the NTSB Survival Factors Group with a copy of 

her May 2003 written report and she was interviewed by the NTSB Survival 

Factors Group after the NTSB initiated its investigation into the March 26, 2003 

AirTran incident. Based on these facts, we supplement the initial decision to find 

explicitly that the appellant’s two disclosures to the NTSB were made within the

normal course of her duties. 

¶8 We now turn to the two disclosures that the appellant made to the Division 

Manager, including (1) the May 2003 written report, which discussed, among 

other things, lack of management support and funding approval, complaints a bout 

training at AirTran facilities, and inability to perform surveillance activities, and 

(2) her meeting with the Division Manager following an “All Hands” meeting on 

June 17, 2003 (for which the Division Manager took some handwritten notes). ID
6

at 18-20; IAF, Tab 19, Subtabs F, H. In its Opinion and Order, the Board noted 

that there was a material dispute of fact concerning whether the appellant’s 

communications to the Division Manager followed typical customs and practices 

in the workplace for reporting regulatory and safety issues to higher-level 

management. Farrington, 118 M.S.P.R. 331, ¶ 8. The Board defined “normal 

channels” as when an “employee conveyed duty-related information to a 

recipient, who in the course of his or her duties, customarily receives the same 

type of information from the employee and from other employees at the same or 

similar level in the organization as the employee.” Id., ¶ 6. The Board identified 

some of the factors that were relevant to the determination, including whether the 

communication complies with the formal and informal customs and practices in 

the employee’s workplace for conveying such information up the chain of 

command, whether the organization enforces a strict hierarchical chain of 

command requiring that communications must go through lower-level supervisors 

before being elevated to higher management, and whether the information was 

conveyed to the recipient in the organization’s commonly accepted manner or 

method for presenting such information for management consideration. Id. 

¶9 The appellant’s position description stated that she would have “frequent 

contact” with, among other groups, “field and regional office management” and 

that the “purpose of these contacts is to . . . provide feedback, communicate 

findings, or resolve issues and problems.” IAF, Tab 19, Subtab B at 2. It is 

undisputed that the Division Manager was the appellant’s fourth- or fifth-level 

supervisor, Farrington, 118 M.S.P.R. 331, ¶ 8, and the information that she 

disclosed in the written report and subsequent meeting with the Division Manager 

was information that she learned during the normal course of her duties. On

review, the appellant cites to the Division Manager’s testimony that he had an 

“open door policy,” but she was never told that she had a duty to provide the 

Division Manager with the written report or speak to him after the June 17, 2003 

meeting. PFR File, Tab 27 at 12, 15. In her deposition, the appellant testified 
7

that she never spoke to the Division Manager prior to sending him the May 2003 

report and she had never gone to him on a work-related issue. IAF, Deposition, 

Subtab 10 at 276 (testimony of the appellant). However, she acknowledged that,

when there was a disagreement at the local level about an issue, the issue was 

elevated, and she does not appear to dispute the testimony of the Division 

Manager and the Assistant Division Manager that it was common for Aviation 

Safety Inspectors to work through local managers or to raise directly issues to the 

regional level. IAF, Deposition, Subtab 1 at 12 (testimony of the Division 

Manager), Subtab 7 at 3 (testimony of the Assistant Division Manager), 

Subtab 10 at 277 (testimony of the appellant). 

¶10 Concerning the May 2003 written report, the appellant acknowledged in her 

deposition that she raised issues that she had attempted to pursue through her 

normal supervisory channels. IAF, Deposition, Subtab 10 at 276 (testimony of 

the appellant). The Assistant Division Manager responded in writing to the 

appellant’s May 2003 report to the Division Manager, she acknowledged the 

safety issues that the appellant raised involving AirTran and her concerns about 

her own work environment, and she described the steps that the agency was 

taking to investigate these concerns. IAF, Tab 19, Subtab G. Given that the 

content of the May 2003 report was information that she learned during the 

course of her duties as an Aviation Safety Inspector, she provided the report to 

someone in her chain of command, it was a common practice for aviation safety 

inspectors to elevate disagreements on such issues to a higher level, and the 

agency’s formal response to her concerns, we find that the appellant’s May 2003 

written report to the Division Manager was made in the course of her normal 

duties through normal reporting channels.

¶11 Concerning the June 17, 2003 meeting, the Division Manager’s handwritten 

notes from this meeting included references to, among other things, “no crew 
8

members trained hands on” with an arrow and the citation “121.417.” 4 IAF,

Tab 19, Subtab H. The appellant on review cites her testimony that she reported 

to the Division Manager that her findings and recommendations were not being 

addressed, that flight attendants had not been trained on the proper tail cone exit, 

and that passengers were at risk. PFR File, Tab 27 at 12. Thus, the appellant 

discussed with the Division Manager during this meeting her concerns based on 

information that she learned as an Aviation Safety Inspector. Neither party 

disputes that the Division Manager held regular “All Hands” meetings in the field 

offices, and he would often invite Aviation Safety Inspectors to speak with him 

afterwards, he had an “open-door policy,” and Aviation Safety Inspectors 

“[r]outinely” took advantage of his open-door policy to speak to him about 

various issues. IAF, Deposition, Subtab 1 at 10-12, 17-18 (testimony of the 

Division Manager). Given that the appellant’s conversation with the Division 

Manager occurred in the workplace, after a meeting in which the Division 

Manager invited Aviation Safety Inspectors to speak with him privately 

afterwards, the content of their conversation focused on work-related issues, and 

her position description contemplates such communications with field and 

regional office managers, we find that any disclosures made to him during this 

meeting were made during the normal course of her duties through normal 

reporting channels. Because we have found that all of the appellant’s disclosures 

were made in the normal course of her duties as an Aviation Safety Inspector, the 

statute at 5 U.S.C. § 2302(f)(2) applies to this matter. 

¶12 Even if we assume for the purposes of our analysis that the appellant proved 

that she disclosed a violation of law, rule, or regulation and/or a substantial and 

specific danger to public health and safety pursuant to 5 U.S.C. § 2302(b)(8)(A), 

we agree with the administrative judge that the appellant failed to prove that the 

agency took the personnel actions against her in reprisal for her disclosures. ID

 

4

The regulation at 14 C.F.R. § 121.417 discusses crewmember emergency training. 
9

at 29-40. Because we affirm the administrative judge’s finding in this regard, we 

need not address the appellant’s arguments on review concerning contributing 

factor or whether the agency proved by clear and convincing evidence that it 

would have taken the action(s) at issue absent the disclosures. PFR File, Tab 27 

at 28; see Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016) 

(finding that it was inappropriate for the administrative judge to determine 

whether the agency proved by clear and convincing evidence that it would have 

denied the appellant’s access to restricted areas and classified documents in the 

absence of his whistleblowing when she found that he failed to prove his prima 

facie case). To the extent that the administrative judge made findings about 

laches that relieved the agency of its obligation to prove by clear and convincing 

evidence that it would have taken the same actions absent the appellant’s 

disclosures, ID at 41-45, we vacate the administrative judge’s findings in this 

regard.

The appellant’s arguments regarding the quality of the hearing recording, the 

administrative judge’s credibility determinations, and her delay in issuing the 

initial decision do not warrant a different outcome. 

¶13 The appellant contends on review that the administrative judge’s “extreme” 

delay in issuing the initial decision “severely prejudiced” her and violated her due 

process rights, Board procedures, and statutory mandates. PFR File, Tab 3 at 6, 

Tab 27 at 5. In pertinent part, she asserts that she was prejudiced because the 

audio recording from the 2-day hearing in 2013 was inaudible and that due to the 

delay in issuing the initial decision, the original court reporter passed away, the 

original court reporting company dissolved, and there was no usable audio 

recording of the hearing. PFR File, Tab 27 at 5-6. The submissions on review 

describe the parties’ efforts to jointly contract with another court reporter to 

generate a transcript of the hearing under these circumstances. E.g., PFR File, 

Tabs 1, 3, 5, 7, 9, 11. The Office of the Clerk of the Board subsequently granted 

the appellant’s motion to file transcripts of the hearing proceedings. PFR File, 
10

Tabs 20, 22. However, instead of filing the transcripts in their entirety, the 

appellant reprinted excerpted portions of the 2013 hearing transcript in her 

supplemental petition for review. PFR File, Tab 27 at 12-26. 

¶14 We acknowledge that the audio recording of the 2013 two-day hearing is 

virtually inaudible. The appellant’s arguments on review do not persuade us that 

she was prejudiced by the delay between the close of the record and the date that 

the initial decision was issued. For instance, she asserts on review that the initial 

decision should be disregarded because it “barely contains any purported quotes 

of testimony,” and “has few if any references to some witnesses,” and she 

requests that the Board review the administrative judge’s “harsh” credibility 

findings. Id. at 7. However, the administrative judge who issued the initial 

decision is the same administrative judge who was present during the 2-day 

hearing in 2013. The administrative judge’s credibility determinations are 

implicitly based on witness demeanor, Little v. Department of Transportation, 

112 M.S.P.R. 224, ¶ 4 (2009), and the appellant’s disagreement with the 

administrative judge’s findings, without more, is insufficient to overcome the 

deference to which such determinations are entitled. See, e.g., Purifoy v.

Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining 

that the Board must give “special deference” to an administrative judge’s 

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly 

discussed”); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 

2002) (stating that the Board must 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; the Board may 

overturn such determinations only when it has “sufficiently sound” reasons for 

doing so). Importantly, the appellant does not contend that the administrative 

judge was incapacitated or otherwise unable to take notes during the hearing or 

observe the testimony of witnesses, which might call her credibility 

determinations into question, nor does the appellant provide any authority to 
11

support her assertion that the administrative judge erred by failing to include any 

quoted testimony. 

¶15 We have reviewed the excerpts of the 2013 hearing transcript, which largely 

involve testimony concerning the appellant’s disclosures, various agency 

officials’ knowledge of the disclosures, circumstances surrounding some of the 

personnel actions, and the clear-and-convincing factors. E.g., PFR File, Tab 27 

at 12-26. However, the excerpted testimony does not change our analysis of 

whether any of the appellant’s disclosures were made in the normal course of her 

duties through normal channels or whether she proved that the agency took the 

personnel actions in reprisal for her disclosures. 

¶16 Finally, to the extent that the appellant may be arguing that her rights were 

harmed by the virtual inaudibility of the hearing tapes, we disagree. In Harp v. 

Department of the Army, 791 F.2d 161, 163 (Fed. Cir. 1986), the U.S. Court of 

Appeals for the Federal Circuit rejected a petitioner’s claim that the 

unavailability of a hearing transcript constituted harmful error per se, requiring 

reversal of the Board’s decision. The court found that “such loss is not fatal” to 

the court’s ability to review a Board appeal. The court analyzed several factors to 

determine whether a fatal flaw occurred, such as whether the appellant

established that he was prejudiced by the loss of the hearing transcript, whether 

the appellant showed that the administrative judge failed to consider or misused 

any particular testimony from the hearing, and whether other evidence existed i n 

the record that would support the administrative judge’s findings. Id.; see also 

Kemp v. Department of Veterans Affairs, 154 F. App’x 912, 914 (Fed. Cir. 

2005)5; Henderson v. Office of Personnel Management, 109 M.S.P.R. 529, ¶ 5 n.1 

(2008). Here, we find that the appellant did not show that she was prejudiced by 

the virtual inaudibility of the hearing tapes and she did not demonstrate that the 

 

5

The Board may follow a nonprecedential decision of the Federal Circuit when, as here, 

it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662, 

¶ 13 n.9 (2016).
12

administrative judge failed to consider or misused any particular testimony of the 

witnesses that might have caused a different result in this case. Furthermore,

although some or all of the hearing tapes may have been virtually inaudible, the 

record in this case was sufficiently developed to provide a meaningful review of 

the issues raised by the appellant. 6

NOTICE OF APPEAL RIGHTS7

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 

 

6 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.

7

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.
13

(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. 

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 
14

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, 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: 
15

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(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. 8 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 

 

8

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. 
16

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. 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board