September 1997
Table of Contents
Questions & Answers
MSPB Regional/Field Offices & Areas Served
Introduction
As a Federal employee, you have an obligation to do your job efficiently, honestly, and courteously. The Federal Government, as your employer, has an obligation to maintain a personnel system that balances the interests of its employees, the agencies that employ them, and the public they serve.
In order to meet its obligation, the Government must sometimes take personnel actions that adversely affect employees. When it does so, it must ensure that those employees are protected from unfair or arbitrary treatment. Under the Civil Service Reform Act of 1978 (CSRA), most Federal employees may appeal various personnel actions affecting them to the U.S. Merit Systems Protection Board.
This publication provides general information about your rights when such actions are taken against you and discusses the Board's appeals process. The discussion applies to typical proceedings before the Board and is not all-inclusive, nor is the information regulatory in nature. Specific appealable actions are governed by the pertinent statutes, regulations, and case law.
Under the Whistleblower Protection Act of 1989, special provisions apply to appeals of actions that you allege were taken against you because of certain disclosures of information, commonly known as "whistleblowing." While most of the procedures described in this publication apply to appeals generally, there are important differences with respect to appeals of actions allegedly based on "whistleblowing." The special provisions applicable to "whistleblower" appeals are discussed in a separate MSPB publication entitled Questions and Answers About Whistleblower Appeals (PDF).
Questions & Answers
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. Established by Reorganization Plan No. 2 of 1978 and the Civil Service Reform Act, the Board is a successor agency to the Civil Service Commission and assumed the Commission's employee appeals functions.
2. Who is on the Board?
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, with no more than two of its three members from the same political party.
3. Where is the Board located?
The Board's headquarters is in Washington, DC. It has regional and field offices in major cities. (The Board's regional and field offices and the geographic areas they serve are listed at the end of this publication.)
4. Does the Board hear all Federal employee appeals?
No. The CSRA authorized the Board to hear appeals of various agency actions, including appeals previously heard by the Civil Service Commission and appeals arising from new causes of action created by the CSRA. Certain other actions may be appealed to the Board under regulations of the Office of Personnel Management (OPM). Since a principal purpose of the CSRA was to streamline Federal personnel management, the Congress did not make all personnel actions appealable to the Board.
5. 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. Under the Whistleblower Protection Act of 1989, if your complaint to the Special Counsel alleges that the personnel action was taken because of "whistleblowing," and the Special Counsel does not seek corrective action on your behalf, you then have the right to seek corrective action directly from the Board.
6. What kinds of actions may be appealed to the Board?
The majority of the cases are appeals of agency adverse actions -- that is, removals, 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, OPM suitability determinations, OPM employment practices, OPM determinations in retirement matters, denials of restoration or reemployment rights, and terminations of probationary employees under certain circumstances.
7. 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.
8. Who may appeal an adverse action to the Board?
Employees who may appeal adverse actions are: (1) employees in the competitive service who have completed a 1-year probationary or trial period, (2) veterans preference-eligible employees with at least one year continuous employment in the same or similar positions outside the competitive service, (3) 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 (4) excepted service employees, other than preference-eligibles, who are not serving a probationary or trial period and who have completed two years current continuous service in the same or similar positions in an Executive agency.
9. Do agencies have to advise employees of their right to appeal personnel actions to the Board?
Yes. When an agency takes an appealable action against an employee, the agency must provide the employee with: (1) a notice of the time limits for appealing to the Board, (2) the address of the appropriate Board regional or field office for filing the appeal, (3) a copy or access to a copy of the Board's regulations, (4) a copy of the Board's appeal form, and (5) a notice of any rights concerning an agency or negotiated grievance procedure.
10. Does the Board hear appeals from employees who are covered by a negotiated grievance procedure?
Yes, under certain circumstances. When an employee is a member of a bargaining unit that has a negotiated grievance procedure covering actions appealable to the Board, the employee normally must pursue a grievance through the negotiated grievance procedure. There are three exceptions to this general rule, however: (1) when the action is an adverse action or performance-based action; (2) when the employee raises an issue of prohibited discrimination in connection with the action; and (3) when the employee alleges that the action was the result of a prohibited personnel practice other than discrimination. If any of these exceptions applies, the employee has the choice of using the negotiated grievance procedure or filing an appeal with the Board, but may not do both. (Under the terms of some union contracts, Postal Service employees may be able to pursue a grievance under the negotiated grievance procedure and also file an appeal with the Board.)
11. Does the Board hear complaints of discrimination in connection with personnel actions?
Yes. If an employee alleges discrimination in connection with an action that is 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 be pursued through the employing agency and the Equal Employment Opportunity Commission (EEOC).
12. How do I file an appeal with the Board?
You must file an appeal in writing with the Board's regional or field office serving the area where your duty station was located when the action was taken. The appeal must be filed within 30 calendar days of the effective date of the action, if the notice of the action sets an effective date. (If the 30th day falls on a Saturday, Sunday, or Federal holiday, the filing deadline is extended to the next working day.) In the case of actions that do not set an effective date (e.g., OPM retirement determinations, denial of within-grade increases), you must file your appeal within the time specified in the Board's regulations. Filing must be made either by mail, by facsimile, by commercial overnight delivery, or by personal delivery. 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. (Special time limits apply to filing appeals of actions allegedly based on "whistleblowing," if you first filed a complaint with the Special Counsel and the Special Counsel did not act on your complaint.) Appeal Form (PDF)
13. Does the appeal have to be in a particular format?
No. An appeal may be in any format, including letter form, as long as it is in writing and contains all of the information specified in the Board's regulations. If you use the Board's appeal form and fill it out completely, this will satisfy the Board's requirements for information to be included in the appeal. An appeal must contain your signature or the signature of your representative, if you have designated one.
14. Do I have any recourse if I miss the deadline for filing an appeal?
Yes. If you file an appeal after the deadline for filing, however, you must show a good reason for the delay and include supporting evidence. The administrative judge will provide you an opportunity to show why your appeal should not be dismissed as untimely.
15. May the agency respond to my appeal?
Yes. An agency has the right to respond to an appeal, but must do so within 20 calendar days of the date of the Board's order acknowledging receipt of the appeal. If a response is not submitted within the time limit, and the agency does not show good cause for an extension, the case will proceed and may be decided on the basis of the available information.
16. 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.
17. 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.
18. Are hearings held on all appeals?
No. Once it is established that your appeal was timely filed and that the Board has jurisdiction, you have a right to a hearing on the merits of your case. You may present evidence, including the testimony of witnesses, at the hearing. However, you may waive the 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.
19. Who has the burden of proof in appeals proceedings?
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. You have the burden of proving that your appeal is within the Board's jurisdiction and that it was timely filed. You have the burden of proving any affirmative defenses (e.g., discrimination or reprisal for "whistleblowing") that you raise. You also have the burden of proof in retirement cases.
20. Is the decision issued by the administrative judge final?
The initial decision of the administrative judge will become the final decision of the Board unless a party files a petition for review with the 3-member Board in Washington within 35 calendar days of the date of the initial decision, or the Board reopens the case on its own motion. Petition for Review Form (PDF)
21. How does the Board decide whether to grant a petition for review?
The Board may grant a petition for review when it is established that there is new and material evidence that was not available when the record was closed or that the administrative judge's decision is based on an erroneous interpretation of law or regulation. The Board's decision on a petition for review constitutes final administrative action. If more than one party files a petition for review and the Board denies all of them, the initial decision becomes final upon the issuance of the last denial.
22. If the initial decision is in my favor, and another party files a petition for review, do I have to wait for relief until the Board issues a decision?
If you are the prevailing party, you will be granted the relief provided in the initial decision pending the outcome of any petition for review. However, this interim relief will not be granted if the administrative judge determines that it is not appropriate. If the decision requires your return to your workplace, the agency does not have to take this action if it determines that such a return would be unduly disruptive. However, it does have to restore you to pay and benefits status. The granting of interim relief is not to be construed as requiring the payment of back pay or attorney fees until a decision has become final.
23. What initial decisions may administrative judges issue on employee 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 (change) the penalty imposed by the agency.
24. What final decisions may the Board issue on petitions for review?
The Board may dismiss the petition if it determines that the matter is not within the Board's jurisdiction or if the petition was not filed within the required time limit and good cause for the untimely filing is not shown. The Board may deny the petition if it does not meet the criteria for review (see Question #21 above). If the Board grants the petition, its final decision may affirm or reverse the initial decision of the administrative judge, in whole or in part. The Board may also modify the decision of the administrative judge, vacate it, or remand (send back) the case to the administrative judge for further processing.
25. What can I do if I am dissatisfied with the final decision of the Board?
You can request court review. Once an initial decision of a Board administrative judge has become final, or the Board has issued a final decision on a petition for review, you can seek review of the final decision in the U.S. Court of Appeals for the Federal Circuit or, in cases involving allegations of discrimination, in the appropriate U.S. district court. You must file a request for judicial review within 60 days of your receipt of the Board's final decision.
26. May cases involving allegations of discrimination be appealed to the Equal Employment Opportunity Commission (EEOC)?
In a case appealable to the Board that involves an allegation of discrimination (a "mixed case"), you may ask the EEOC to review the Board's final decision on the discrimination issue. If the EEOC disagrees with the Board's decision on the discrimination issue, the case is returned to the Board. If the Board does not adopt the EEOC decision, then the case is referred to the Special Panel made up of a Chairman appointed by the President, one member of the Board, and one EEOC commissioner. The Special Panel issues the final decision in the case, which then may be appealed to the appropriate U.S. district court.
For Additional Information
Copies of Title 5 Code of Federal Regulations (CFR), containing the Board's regulations at 5 CFR, Chapter II, Parts 1200 through 1210, are available at any Board office, agency libraries, agency personnel or administrative offices, and most public libraries. Part 1201 describes the Board's appellate procedures and requirements. Part 1209 describes the special provisions applying to "whistleblower" cases.
Your agency personnel office can provide additional information or you can contact the Board regional or field office serving your area. For information on filing a petition for review with the Board, contact the Clerk of the Board, U.S. Merit Systems Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419.
Because the Board is prohibited by law from giving advisory opinions, Board personnel may not discuss with you the merits of any appeal you or another party may bring to the Board. However, Board personnel will be pleased to answer any questions you may have about Board procedures and the processing of appeals.
Information about the Board and a number of MSPB publications are available on the MSPB World Wide Web site at www.mspb.gov. You can send e-mail to the Board at mspb@mspb.gov.
Board decisions, case summaries, press releases, and other information are available on the U.S. Government Printing Office's Federal Bulletin Board (MSPB Library), which can be accessed by computer modem at 202-512-1387 seven days a week. User assistance is available from GPO from 8 AM to 4 PM, Eastern time, Monday through Friday, by calling 202-512-1530. The GPO Federal Bulletin Board can also be accessed from the Board's website, from the Fedworld website (www.fedworld.gov), or by telnet to fedbbs.access.gpo.gov.
MSPB Regional and Field Offices and Areas Served
NOTE: The telephone numbers listed below are both voice and TDD numbers.
Atlanta Regional Office
401 W. Peachtree Street, NW.
Suite 1050
Atlanta, GA 30308
(404) 730-2751
Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee
Central Regional Office
230 South Dearborn Street
Room 3100
Chicago, IL 60604
(312) 353-2923
Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin
Dallas Field Office
1100 Commerce Street
Room 6F20
Dallas, TX 75242
(214) 767-0555
Arkansas, Louisiana, Oklahoma, and Texas
Northeastern Regional Office
U.S. Customhouse, Room 501
Second & Chestnut Streets
Philadelphia, PA 19106
(215) 597-9960
Delaware, Maryland (except the counties of Montgomery and Prince George's), New Jersey (except the counties of Bergen, Essex, Hudson, and Union), Pennsylvania, and West Virginia
Boston Field Office
99 Summer Street
Suite 1810
Boston, MA 02110
(617) 424-5700
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont
New York Field Office
26 Federal Plaza
Room 3137A
New York, NY 10278
(212) 264-9372
New Jersey (counties of Bergen, Essex, Hudson, and Union), New York, Puerto Rico, and Virgin Islands
Washington Regional Office
5203 Leesburg Pike
Suite 1109
Falls Church, VA 22041
(703) 756-6250
Washington, DC, Maryland (counties of Montgomery and Prince George's), North Carolina, Virginia, and all overseas areas not otherwise covered
Western Regional Office
250 Montgomery Street
Suite 400, 4th Floor
San Francisco, CA 94104
(415) 705-2935
California and Nevada
Denver Field Office
12567 W. Cedar Drive
Suite 100
Lakewood, CO 80228
(303) 969-5101
Arizona, Colorado, Kansas (except Kansas City), Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and Wyoming
Seattle Field Office
915 Second Avenue
Room 1840
Seattle, WA 98174
(206) 220-7975
Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas
Customer Service Standards
MISSION I -- Adjudication of Appeals
MISSION II -- Oversight of the Federal Merit Systems and the U.S. Office of Personnel Management
We will conduct surveys of our customers from time to time to see how well we are meeting these standards. However, if at any time, you have comments or suggestions concerning our service, we invite you to provide feedback to our Chairman, Mr. Ben Erdreich, through the Clerk of the Board, at 1120 Vermont Avenue, NW., Washington, DC 20419, telephone (202) 653-7200, FAX number (202) 653-7130. Electronic mail may be sent over the Internet to mspb@mspb.gov.
U.S. Merit Systems Protection Board
1120 Vermont Avenue, NW.
Washington, DC 20419
(202) 653-7124
V/TDD (202) 653-8896
Toll-free 1-800-209-8960
FAX (202) 653-7130
Back to MSPB Forms and Publications Page
September 1997
(Updated April 1999)