MSPB Initial Appeals Frequently Asked
Questions
- What is the U.S. Merit Systems Protection Board?
- Does the Board hear all types of Federal employee
appeals?
- What kinds of actions may be appealed to the
Board?
- What can I do if I am affected by a personnel
action that is not appealable to the Board?
- May all Federal employees file appeals with
the Board?
- Who may appeal an adverse action to the Board?
- Do agencies have to advise employees of their
right to appeal personnel
actions to the Board?
- Does the Board hear appeals from employees
who are covered by a negotiated
grievance procedure?
- Does the Board hear complaints of discrimination
in connection with
personnel actions?
- How do I file an appeal with the Board?
- Does the appeal have to be in a particular
format?
- Do I have any recourse if I miss the deadline
for filing an appeal?
- Who can represent me in an appeal before the
Board, if I choose
to have a representative?
- Who decides my appeal?
- Are hearings held on all appeals?
- Who has the burden of proof in appeals proceedings?
- Is the decision issued by the administrative
judge final?
- What actions may administrative judges take
on appeals?
- Do the procedures described above apply to
all appeals to MSPB?
- How to Identify Pleadings in an Attachment?
- How to View an e-Appeal generated Pleading with Attachments.
1. What is the
U.S. Merit Systems Protection Board?
The U.S. Merit Systems Protection Board is an independent
agency in the Executive branch of the Federal Government that serves as the guardian of Federal merit systems.
The Board is composed of three members who are appointed by the President and confirmed by the Senate. They serve
overlapping, non-renewable 7-year terms. The Board is bipartisan. No more than two of its three members may be
from the same political party. The last button to the left will take you to the MSPB website where you can find
a wealth of information about the MSPB.
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2. Does the Board hear all types of Federal
employee appeals?
No. The Board may hear appeals of federal agency actions
only when it has been expressly authorized to do so by law, rule, or regulation. 5 U.S.C. § 7701(a). A list
of actions or decisions that are appealable to the Board, and the laws, rules, and regulations that authorize these
appeals, can be found in the Board's regulation at 5 C.F.R. § 1201.3.
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3. What kinds of actions may be appealed
to the Board?
The majority of cases within the Board's jurisdiction are
appeals of adverse actions: removals (termination of the employment relationship for cause), suspensions of more
than 14 days, reductions in grade or pay, and furloughs of 30 days or less. Other types of actions that may be
appealed to the Board include: performance-based removals or reductions in grade, denials of within-grade salary
increases, reduction-in-force actions, final administrative actions or decisions affecting an individual's rights
or interests under the Civil Service Retirement System or the Federal Employees' Retirement System, OPM employment
practices, OPM suitability determinations or suitability determinations by other agencies when that authority has
been delegated by OPM, denials of restoration or reemployment rights, and terminations of probationary employees
under certain circumstances. See the Board's regulation at 5 C.F.R. § 1201.3 for a complete list of actions
that are appealable to the Board. See question #19 for descriptions of some particular statutes that provide for
appeals to the Board.
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4. What can I do if I am affected by a
personnel action that is not appealable to the Board?
- Some actions that are not appealable to the Board may be
appealable to OPM or may be covered by agency grievance procedures.
- If you are a member of a bargaining unit, actions covered
under a negotiated grievance procedure may be grieved in accordance with that procedure.
- If a personnel action (whether appealable to the Board or
not) is taken or about to be taken as a result of a prohibited personnel practice, you may file a complaint with
the Office of Special Counsel, asking the Special Counsel to seek corrective action from the Board on your behalf.
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5. May all Federal employees file appeals
with the Board?
No. The employees and others (e.g., applicants for employment,
annuitants in retirement cases) who may appeal specific actions to the Board vary in accordance with the law and
regulations governing those actions. In some cases, classes of employees, such as political appointees, are excluded.
Employees of specific agencies are excluded with respect to certain actions.
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6. Who may appeal an adverse action to
the Board?
Employees who may appeal adverse actions (removals, suspensions
of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less) are:
- Employees in the competitive service who have completed
a 1-year probationary or trial period;
- Veterans preference-eligible employees with at least one
year of continuous employment in the same or similar positions outside the competitive service;
- Postal Service supervisors and managers, and Postal Service
employees engaged in personnel work (other than those in nonconfidential clerical positions), who have completed
one year of current continuous service in the same or similar positions; and
- Excepted service employees, other than preference-eligibles,
who are not serving a probationary or trial period and who have completed two years of current continuous service
in the same or similar positions in an Executive agency.
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7. Do agencies have to advise employees
of their right to appeal personnel actions to the Board?
When an agency issues a decision notice to an employee on
a matter that is appealable to the Board, the agency must provide the employee with the following: (1) notice of
the time limits for appealing to the Board, and the address of the appropriate Board office for filing the appeal;
(2) a copy, or access to a copy, of the Board's regulations; (3) a copy of the Board's appeal form; and (d) notice
of any right the employee has to file a grievance. 5 C.F.R. § 1201.21. However, the absence of a notice of
appeal rights does not necessarily mean you have not been subjected to an action that is appealable to the Board.
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8. Does the Board hear appeals from employees
who are covered by a negotiated grievance procedure?
If an employee is a member of a bargaining unit that is represented
by a union or an association, the bargaining agreement may have a negotiated grievance procedure available to the
employee. Many times, the grievance procedure will cover personnel actions that by law may otherwise be appealed
to the Board. If a bargaining unit employee is covered by such a "broad scope" grievance procedure, then
the employee has a choice between filing either a grievance with the agency or an appeal with the Board, but may not do both.
However, if the employee alleges discrimination in connection with the underlying personnel action, he or she may
appeal the arbitrator's decision to the Board. See 5 U.S.C. § 7121(d).
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A preference eligible Postal Service employee can file both
a grievance and a Board appeal from the same action, but does not have a right of Board review of an arbitration
decision.
9. Does the Board hear complaints of discrimination
in connection with personnel actions?
Generally, yes, if the personnel action can be appealed.
See question 5. If an employee alleges discrimination in connection with most actions that are otherwise appealable
to the Board, the Board has jurisdiction over the matter. Discrimination allegations that do not involve actions
within the Board's jurisdiction may only be pursued through the employing agency and the Equal Employment Opportunity
Commission (EEOC).
In IRA appeals, USERRA appeals, and VEOA appeals, where the
underlying personnel action is not independently appealable to the Board, the Board lacks jurisdiction to decide
claims of discrimination. See 5 C.F.R. § 1201.3(a) for a list of actions that are independently appealable
to the Board.
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10. How do I file an appeal with the
Board?
- You must file an appeal in writing with the regional or
field office of the Board that has jurisdiction over the area where your duty station was located when the agency
took the action. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits,
and appeals of adverse suitability determinations under 5 CFR part 731, must be filed with the regional or field
office that has jurisdiction over the area where you live. See 5 C.F.R. § 1201.4(d).
- An appeal must be filed within 30 calendar days of the effective
date of the action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever
is later. If the 30th day falls on a Saturday, Sunday, or Federal holiday, the filing deadline is extended to the
next working day.
- If you and the agency mutually agree in
writing to submit your dispute to an alternative
dispute resolution (ADR) process, the 30-day filing time limit is automatically extended to 60 days.
- Special statutory time limits apply to filing appeals under
certain laws. See question #19.
- Appeals may be filed through this e-Appeal process, or
by mail, by facsimile, by commercial overnight delivery, or by personal delivery. The date of filing by e-Appeal
is the date of electronic submission. The date of filing by mail is considered to be the postmark date. The date
of filing by facsimile is the date of the facsimile. The date of filing by commercial overnight delivery is the
date you deliver the appeal to the commercial overnight delivery service.
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11. Does the appeal have to be in a particular
format?
Although an appeal may be in any format, it must be in writing
and contain all of the information specified in the
Board's regulations. An appeal must
be signed by you or your representative, if you have
designated one.
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12. Do I have any recourse if I miss
the deadline for filing an appeal?
Yes, but if you file an appeal after the deadline for filing,
you may be ordered to explain the delay and show good cause for the late filing. You should never miss the filing
date in order to gather evidence or other supporting documentation. Once your case has been assigned to an administrative
judge, the judge will order your evidence at the appropriate time.
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13. Who can represent me in an appeal
before the Board, if I choose to have a representative?
You can choose any person to represent you so long as that
person is willing and able to serve. You can also represent yourself. Typical representatives include private attorneys,
union attorneys, and other union representatives. The agency may challenge your representative on the basis of
conflict of interest or conflict of position. If your representative is disqualified, you will be given a reasonable
time to obtain another representative.
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14. Who decides my appeal?
When a Board regional or field office receives an appeal,
the case is assigned to an administrative judge in that office. The administrative judge will issue a decision
after considering all of the relevant evidence in the case.
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15. Are hearings held on all appeals?
Once it is established that your appeal was timely filed
and that the Board has jurisdiction, you generally have a right to a hearing on the merits of your case. The exceptions
to this right are USERRA and VEOA appeals, in which the administrative judge has discretion whether to hold a hearing
requested by an appellant. You may waive a right to a hearing and choose instead to have the appeal decided on
the basis of the written record, which will include all pleadings, documents, and other materials filed in the
proceeding. If there is a hearing, you will have the opportunity to present evidence, including the testimony of
witnesses. Hearings are sometimes conducted by telephone or video conferencing rather than in person.
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16. Who has the burden of proof in appeals
proceedings?
The Agency:
Except in IRA appeals, the agency has the burden of proving that it was justified in taking the action. If the
agency meets its burden of proof, the Board must decide in favor of the agency, unless you show that there was
"harmful error' in the agency's procedures, that the agency decision was based on a prohibited personnel practice,
or that the decision was not in accordance with the law.
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The Appellant:
You have the burden of proving that your appeal is within the Board's jurisdiction and that it was timely filed.
You also have the burden of proving any "affirmative defenses" that you raise, for example, discrimination
or reprisal for whistleblowing. You also have the burden of proof in retirement cases and IRA appeals.
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17. Is the decision issued by the administrative
judge final?
The initial decision of the administrative judge will become
the final decision of the Board 35 days after the date of the decision unless a party files a petition for review
with the 3-member Board in Washington. A petition
for review by the MSPB must be filed within 35 days after the date the initial decision is issued or within 30
days after the date you receive the initial decision, whichever is later.
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18. What actions may administrative judges
take on appeals?
The initial decision of the administrative judge may dismiss
the appeal if the matter is not within the Board's jurisdiction or if the appeal was not filed within the required
time limit and good cause for the untimely filing is not shown. Appeals that are not dismissed may be settled voluntarily
by the parties. If the parties wish to have the settlement agreement enforceable by the Board, they must ask the
administrative judge to enter the agreement into the record. In appeals that are decided on the merits (not dismissed
or settled), the decision of the administrative judge may affirm the agency's action, reverse the action, or--in
certain cases--mitigate (modify) the penalty imposed by the agency.
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19. Do the procedures described above
apply to all appeals to MSPB?
Some laws that authorize appeals to MSPB include procedural
requirements that differ from the general procedures described in this publication. Such laws may require that
you first exhaust the procedures of another agency before filing with MSPB, and the time limits for filing differ
from those discussed in this publication. Also, because the basis for an appeal to MSPB is an alleged violation
of one of these laws, you cannot expect your agency to advise you of an alleged violation and a right to appeal
to MSPB. Laws with different procedural requirements include the following:
- Whistleblower Protection Act of 1989 (Public Law No. 101-12) - This law authorizes an appeal to MSPB if
you allege that you were subject to an agency action that was taken or threatened (or is about to be taken or threatened)
because of certain legal disclosures of information, commonly known as whistleblowing. Unless the matter is directly
appealable to the Board under law, rule, or regulation, you must first file a complaint with the Office of Special
Counsel and exhaust the procedures of that office. The special provisions applicable to whistleblower appeals are
discussed in a separate MSPB publication entitled Questions & Answers About Whistleblower Appeals available
on the MSPB website. Also see Title 5 of the U.S. Code, section 1221, and the Board's regulations at Title 5 of
the Code of Federal Regulations, Part 1209.
- Presidential and Executive Office Accountability Act (Public Law No. 104-331) - This law authorizes appeals to MSPB by
employees of the Executive Office of the President, the White House Residence, and the official residence of the
Vice President that allege violations of certain workplace laws, including the Family and Medical Leave Act and
the Fair Labor Standards Act. You must first exhaust a mandatory period of counseling and mediation with the employing
agency. Any subsequent appeal to MSPB must be filed no earlier than the 30th day and no later than the 90th day
after you receive notice of the end of the mandatory period of counseling and mediation. See Title 3 of the U.S.
Code, Chapter 5.
- Uniformed Services Employment and Reemployment Rights
Act (USERRA) (Public Law No. 103-353) - This law
authorizes an appeal to MSPB based on an agency's alleged violation of your employment or reemployment rights following
your service in a uniformed service (including discrimination based on such service or on your status as a veteran).
You have the option of appealing directly to MSPB or filing a complaint with the Department of Labor's Veterans'
Employment and Training Service (DOL/VETS). If you file with DOL/VETS, you must first exhaust that agency's procedure
and may appeal to MSPB later if DOL/VETS cannot resolve the matter. See Title 38 of the U.S. Code, Chapter 43,
and the Board's regulations at Title 5 of the Code of Federal Regulations, Part 1208.
- Veterans Employment Opportunities Act (Public Law No. 105-339) - This law authorizes an appeal to MSPB
based on an agency's alleged violation of any law or regulation relating to veterans' preference. You must first
file a complaint with DOL/VETS and allow that agency 60 days to resolve the matter. If DOL/VETS advises you that
it has been unable to resolve the matter, an appeal to MSPB must be filed within 15 days after the date you receive
the DOL/VETS notice. See Title 5 of the U.S. Code, sections 3330a, 3330b, and 3330c, and the Board's regulations
at Title 5 of the Code of Federal Regulations, Part 1208.
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20. How to Identify Pleadings in an Attachment?
Click Here to view tutorial.
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21. How to View an e-Appeal generated Pleading with Attachments.
Click Here to view tutorial.
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Additional information on the appeal rights of veterans is
available on the Web sites operated by the Office of Personnel Management (Click Here and
choose "Veterans" from the menu) and DOL/VETS (www.dol.gov/vets).
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