The Civil Service Reform Act (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 OPM regulations. 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. However, some actions that are not appealable to the Board may be appealed to OPM or may be covered by agency grievance procedures.
If a personnel action involves a prohibited personnel practice, regardless of whether the action is appealable to the Board, the employee may file a complaint with the Special Counsel, asking that the Special Counsel seek corrective action from the Board. Under the Whistleblower Protection Act of 1989, an individual who alleges that a personnel action was taken, or not taken, or threatened, because of "whistleblowing" may seek corrective action from the Board directly if the Special Counsel does not seek corrective action on his or her behalf.
Most of the cases brought to the Board are appeals of agency adverse actions--removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. The next largest number of cases involve appeals of OPM determinations in retirement matters. 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 (the development and use of examinations, qualification standards, tests and other measurement instruments), denials of restoration of reemployment rights, and certain terminations of probationary employees.
Additional jurisdictional issues arise where the employee alleges discrimination in connection with an action otherwise appealable to the Board (e.g., mixed case). While the Board has jurisdiction over such appeals, the employee, if dissatisfied with the final decision of the Board, may ask the Equal Employment Opportunity Commission (EEOC) to review the Board's decision. If the EEOC and the Board cannot agree, the case is referred to the Special Panel for final resolution. The Special Panel consists of a Chairman appointed by the President, one member of the Board appointed by the MSPB Chairman, and one EEOC commissioner appointed by the EEOC Chairman. A discrimination complaint in connection with an action that is not appealable to the Board may be pursued through internal agency procedures and the EEOC.
There are also additional jurisdictional issues when the employee is a member of a bargaining unit that has a negotiated grievance procedure covering any of the actions that may be appealed to the Board. In such instances, the employee normally must pursue a grievance through the negotiated grievance procedure. There are three exceptions to this general rule: (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 apply, 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 procedure and also file an appeal with the Board.)
For the Board to have jurisdiction over any appeal of a personnel action, it must possess jurisdiction over both the action and the employee filing the appeal. Approximately 2 million Federal employees, or about two-thirds of the full-time civilian work force, currently have appeal rights to the Board. Employees eligible to appeal specific actions 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, such as the intelligence agencies and the General Accounting Office, are excluded with respect to certain actions.
Generally, employees who may appeal adverse actions and performance-based actions are those in the competitive service who have completed a probationary period and those in the excepted service (other than the Postal Service) with at least two years continuous service. Postal Service employees who may appeal adverse actions are preference-eligible employees with one year continuous service and certain Postal Service supervisors, managers, and employees engaged in personnel work.
Probationary employees have very limited appeal rights. They may appeal a termination based on political affiliation or marital status, and they may appeal a termination based on conditions arising before employment on the grounds that the termination was not in accordance with regulations. Employees and annuitants may appeal OPM decisions affecting entitlements under the retirement systems. Certain actions, such as OPM suitability determinations and OPM employment practices, may be appealed by applicants for employment.
An appellant files an appeal with the appropriate MSPB regional or field office having geographical jurisdiction. An administrative judge issues an initial decision. Unless a party files a petition for review with the Board, the initial decision becomes final 35 days after issuance. Any party, or OPM or the Special Counsel, may petition the full Board in Washington to review the initial decision. The Board's decision on petition for review is final and constitutes final administrative action.ORIGINAL JURISDICTION
- Cases arising under the Board's original jurisdiction include:
- Disciplinary actions brought by the Special Counsel alleging violation of the Hatch Act;
- Corrective and disciplinary actions brought by the Special Counsel against agencies or Federal employees who are alleged to have committed prohibited personnel practices, or to have violated certain civil service laws, rules or regulations;
- Requests for stays of personnel actions alleged by the Special Counsel to result from prohibited personnel practices;
- Requests for review of regulations issued by OPM or of implementation of OPM regulations by an agency; and
- Informal hearings in cases involving proposed performance-based removals from the Senior Executive Service. While the number of original jurisdiction cases that come before the Board is small, these cases often involve systemic issues with broad implications for both employees and agencies. Most original jurisdiction cases are Special Counsel disciplinary actions (both Hatch Act and non-Hatch Act) and Special Counsel requests for stays.
The relationship of the Special Counsel to the Board is like that of a prosecutor to a judge; the Special Counsel prosecutes cases before the Board. If, after an investigation, the Special Counsel determines that there are reasonable grounds to believe that a violation has occurred or may occur, the Special Counsel may bring a corrective action against an agency. The Special Counsel may bring a disciplinary action against an employee alleged to have committed a violation. The Special Counsel may also seek a stay of a personnel action if there are reasonable grounds to believe that the action was taken, or is about to be taken, as a result of a prohibited personnel practice.
In corrective action cases, the Board may order the agency to take necessary action to correct the prohibited personnel practice or pattern of such practices. In disciplinary actions other than those involving Hatch Act violations, the Board may order the employee's removal, reduction in grade, suspension, reprimand, debarment from Federal employment for a period not to exceed five years, or a fine up to $1,000. In Hatch Act cases involving Federal or District of Columbia government employees, the Board may order removal of the employee or, if the Board unanimously finds that removal is not warranted, may order a suspension of not less than 30 days. In Hatch Act cases involving state or local government employees, the Board determines whether the employee's removal is warranted; it cannot impose a different penalty.
Original jurisdiction cases are processed at Board headquarters. Special Counsel cases and actions against administrative law judges are heard by the Board Administrative Law Judge, who issues an initial decision. The parties may file a petition for review with the full Board within 35 days of the date of the initial decision. Otherwise, the initial decision will become the final Board decision.